dvd-discuss.archive.0007100640 764 764 22227553 7141244241 15364 0ustar wseltzerwseltzerFrom dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 02:13:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15950 for dvd-discuss-outgoing; Sat, 1 Jul 2000 02:13:37 -0400 Received: from eperke.themail.com (root@eperke.themail.com [216.64.18.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15947 for ; Sat, 1 Jul 2000 02:13:36 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.25]) by eperke.themail.com (8.9.3/8.9.3) with SMTP id BAA03987 for ; Sat, 1 Jul 2000 01:14:25 -0500 (EST) (envelope-from mw@themail.com) Date: Sat, 1 Jul 2000 01:14:25 -0500 (EST) Message-Id: <200007010614.BAA03987@eperke.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Just curious about sw patents X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.255.233.3 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_66_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_66_Boundary___ Content-type: text/plain I was looking over some archived patent issue threads, but I was wondering... Was a software patent ever issued for DeCSS...? because (although the court has its own ideas about what this case is about) I was looking back and I agree with BT that there are/could be due process issues involved here. just wondering. -m __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_66_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 02:27:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA16096 for dvd-discuss-outgoing; Sat, 1 Jul 2000 02:27:34 -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 CAA16093 for ; Sat, 1 Jul 2000 02:27:34 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 240F499C82; Fri, 30 Jun 2000 23:30:12 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 1601B938C0 for ; Fri, 30 Jun 2000 23:30:12 -0700 (PDT) Date: Fri, 30 Jun 2000 23:30:11 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS2 In-Reply-To: <20000630094020.A629@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 Fri, 30 Jun 2000, Paul Fenimore wrote: > 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. So has anyone forwarded this to the EFF lawyers? From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 04:44:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA17154 for dvd-discuss-outgoing; Sat, 1 Jul 2000 04:44:26 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA17151 for ; Sat, 1 Jul 2000 04:44:25 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id DAA13323 for ; Sat, 1 Jul 2000 03:46:49 -0500 Message-ID: <395DB175.795CB187@mninter.net> Date: Sat, 01 Jul 2000 03:53:09 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Circumvention and harm 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 In the most recently released transcript, I think I saw what many saw: the judge wants to hear the facts about circumvention and harm and would rather all the rest just fade away. Forgive me a brief recap: Page 33 20 THE COURT: The factual 21 issues for trial in this case are narrow and well defined. I 22 do not intend to be all inclusive, but the core questions in 23 the case include these: Does DECSS as claim in fact 24 circumvent CSS? Was it primarily designed and produced for 25 the purpose of circumventing CSS? Does it have any 34 1 significant commercial purpose for use other than circumvent 2 CSS? 3 Are the defendants in this case entitled to the 4 benefits of the reverse engineering session to the DMCA? Are 5 they entitled to the benefits of the encryption research 6 exception to DMCA? Is there at least some threat of harm, and 7 is there any remedy for it other than an injunction? and Page 49: 14 THE COURT: The question of whether there genuinely is any 15 risk of harm will be controlled predominantly by such matters 16 as the quality of files encrypted with DCSS, the ability to 17 transmit them in any reasonable span of time and matters such 18 as that. Personally, I think that to focus on these two issues would not be a great loss, with the 1st amendment and unconstitional-DMCA defenses still bringing up the rear. Question: Does DeCSS circumvent CSS? Answer: No. DeCSS was reverse engineered to conform with CSS. How can one argue that it circumvents CSS? I submit a defense could be made that "DeCSS does not circumvent CSS, but behaves in a manner exactly prescribed by the CSS spec." Doesn't circumvention implicate a breaking or bending of the spec itself to gain unexpected access? Nobody has written a program that can display or copy a DVD movie without regard to CSS (circumventing it), just programs that use the CSS mechanism to gain access to the movie. Forgive me a wacky analogy: I need to have my shoes tied. Normally I am required to reach down and tie some knots to obtain this result. But I have built a machine to take the laces and tie the knots for me. Nobody could accuse me of circumventing the need to tie my shoes to have tied shoes--I have merely found a unique method for accomplishing the same process and achieving the same result. Coupling this with the undisputed fact that DVD distributors have no "access license" with consumers strengthens the position. There is no limitation on consumers compelling them to use one method of tying their shoes over another. Has this been ventured before? This is a little different than the does-not-circumvent defenses listed in the roadmap. Question: Does it have any significant commercial purpose for use other than circumvent CSS? Answer: Yes. As has been established in this forum and in depositions, DeCSS can bash region coding (not part of CSS), and can make possible non-infringing uses that CSS hinders a priori without consumer waiver of the right. It also has the potential of making DVD players cheap, and software DVD players entirely free (well, most already are... but you get my point). It liberates DVD players from the DVDCCA cabal. Insert reverse- engineering and anti-competetive vs. free market arguments here. Question: Is there some threat of harm? Answer: No. I feel it is very important that the defense get strong, network- knowledgeable testimony that supports the declarations which deny the ease with which a DVD can be transported over a network of any speed. This would include solid technical explanations of why 100Mbit networks never perform at theoretical optimum, the practicalities of common network installations, and how the bandwidth/distance/capital tradeoffs ensure that people with sufficient bandwidth that might make distributing a large file over the network reasonable are so close together they would sooner choose to use a physical transport method, especially because the DVD is already in a fixed form. With strong defenses in these areas, we may never have to broach the constitutionality of the law. We will give the judge exactly what he is looking for without forcing him to consider the external issues he so wishes to avoid. One point I need to mention is that the judge seems to have bought the plaintiff's position that the quality of a copy is an important issue in consideration of harm--specifically that just because a copy has high or infinite coincidence with the original gives the plaintiffs some special right to prevent the copying from taking place in the absense of a consumer's explicit waiver of the right. If I want to demonstrate to a class the techniques of MPEG-2 variable bitrate encoding or DVD authoring, it does me no good to be permitted to use a vidcap or VHS of a DVD but be barred from using identical MPEG-2 and DVD data. This is unacceptable. Conversely, I can take a VHS version of a movie and given "pirate king" resources I can make a non-trivial number of copies that are subjectively identical to the original. Equally against the law, but for some reason not legal to bar a priori like a digital copy. Good night, all. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 07:55:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA18140 for dvd-discuss-outgoing; Sat, 1 Jul 2000 07:55:23 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA18137 for ; Sat, 1 Jul 2000 07:55:22 -0400 Received: from jy01 (user-2inig35.dialup.mindspring.com [165.121.64.101]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id HAA28856 for ; Sat, 1 Jul 2000 07:58:00 -0400 (EDT) Message-Id: <200007011158.HAA28856@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 01 Jul 2000 07:50:55 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Declaration of Michael Shamos Mime-Version: 1.0 Content-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 declaration for MPAA by Michael Shamos, professor of computer science at Carnegie Mellon and an intellectual property lawyer: http://cryptome.org/mpaa-v-2600-dms.htm He declares his findings and opinions on several experiments using DeCSS on DVDs and DivXes. Here is an IRC session of Professor/Lawyer Shamos ensaring an unwary party in DivX movie trading: 20. To obtain a DivX of a different movie from the Internet, we went to Internet Relay Chat and joined to #divx again under the name VaioBoy. We offered to trade "Sleepless in Seattle" for other movies. "[deleted]" offered to trade with us. Here is the chat log that resulted from this session: Session Start: Tue June 27 23:15:45 2000 Session Ident: [deleted] ([deleted]) anyone have any divxes to trade for sleepless in seattle? <[deleted]> sure..... army of darkness, entrapment, the matrix, the rock, fight club (2cd set), the professional, cruel intentions, half-baked oh wow lemme see fight club is 2 cds? Is there a 1cd rip out there? actually the matrix sounds great where do you want me to send sleepless? <[deleted]> i dunno if fight club is on 1 cd. <[deleted]> but it's 2x the quality <[deleted]> lemme just make you an acct on my ftp. <[deleted]> do you have an ftp? nope, but I can upload I don't suppose you could install serv-u? <[deleted]> you can upload and download ;-) cause that's where the matrix is : ) <[deleted]> I have an ftp. lemme make you an acct. <[deleted]> 1sec. <[deleted]> do you have a static ip??? yep <[deleted]> k hold on, lemme switch over to that I have two net interfaces I'll be back on irc in just a minute <[deleted]> just what is it? <[deleted]> ok 128.2.179.23 <[deleted]> k ok fixed [handle changed] <[deleted]> k <[deleted]> do you have ICQ? nope I hate that program :) <[deleted]> k so where should I connect to? if you will permit 2 logins, I can upload and download simultaneously. I have enough bandwidth that there shouldn't be a problem. <[deleted]> you're gonna have to wait a minute. <[deleted]> I'm moving the matrix into the ftp hdd at the moment. awesome thanks man you want me to start upping now? <[deleted]> yeah. sure ok, where do I connect to? <[deleted]> oh sorry <[deleted]> :) np+) <[deleted]> 24.8.102.212:21 vaioboy / vaioboy holy shit we are getting pretty good rates <[deleted]> yeap. thanks again man <[deleted]> np I'll upload more if I come across anything you don't have <[deleted]> ok <[deleted]> I think I want to start a trading club. <[deleted]> of just DivX's. that would be really cool I have enough bandwidth to courier things <[deleted]> I've just ordered a 60gig hdd. how much did you pay for that? <[deleted]> 265 shit maxtor <[deleted]> yeap I'm going to get the IBM 75 just because it's 7200 RPM <[deleted]> that's too much : ) haha NEVER! <[deleted]> 5400 is just fine well my 9gig cheetah will still smoke it <[deleted]> I've only got 800 bucks to last me until september : ) but that's ok, it's to store movies anyway. ok man <[deleted]> that's what my 60gig is going to be for. just movies. I am going to go code for a while Thanks again <[deleted]> ok. np msg me sometime if you want anything vaiokid/boy <[deleted]> alright Session Close: Tue Jun 27 23:42:21 2000 From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 11:15:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19121 for dvd-discuss-outgoing; Sat, 1 Jul 2000 11:15:37 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19118 for ; Sat, 1 Jul 2000 11:15:36 -0400 Received: from 207-172-49-152.s152.tnt7.lnhva.md.dialup.rcn.com ([207.172.49.152]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 138P27-0000hO-00 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 11:18:16 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200007011158.HAA28856@granger.mail.mindspring.net> References: <200007011158.HAA28856@granger.mail.mindspring.net> Date: Sat, 1 Jul 2000 11:15:19 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Declaration of Michael Shamos 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 >We offer the declaration for MPAA by Michael Shamos, professor >of computer science at Carnegie Mellon and an intellectual property >lawyer: > > http://cryptome.org/mpaa-v-2600-dms.htm > >He declares his findings and opinions on several experiments using >DeCSS on DVDs and DivXes. Choice quotes 25. Internet 2 is designed to run at 1 gigabit per second. It is currently deployed at several universities. At that speed it would take less than a minute to download a two-hour DivX file. An entire uncompressed DeCSSed DVD could be transferred in less than 10 minutes. And most students have access to the full bandwidth of Internet2? It's not just for supercomputing applications, but can be used for pr0n and DiVX trading? 31. Available bandwidth has been increasing in the United States at a rate of 5-10 times that of CPU processor speeds. Processors are currently doubling in speed approximately every 18 months. So bandwidth is doubling every 1.8 - 3.6 months? This is a confusing statemennt, and possibly refers to aggregate bandwidth, and not, neccesaritly to the bandwidth available to any one user. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 11:28:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19304 for dvd-discuss-outgoing; Sat, 1 Jul 2000 11:28:18 -0400 Received: from ts0210.bates.edu (root@ts0204.bates.edu [134.181.72.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19301 for ; Sat, 1 Jul 2000 11:28:15 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id LAA00838 for ; Sat, 1 Jul 2000 11:33:37 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sat, 1 Jul 2000 11:33:35 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 1 Jul 2000, Jeremy Erwin wrote: > 25. Internet 2 is designed to run at 1 gigabit per second. It is > currently deployed at several universities. At that speed it would > take less than a minute to download a two-hour DivX file. An entire > uncompressed DeCSSed DVD could be transferred in less than 10 minutes. > > And most students have access to the full bandwidth of Internet2? > It's not just for supercomputing applications, but can be used for > pr0n and DiVX trading? Yeah, the U of C has 655 Mbps to the outside world, but how much of that do they let me use? not much. Additionally, in the previous paragraph he makes a truly terrible argument. It goes like this: 1) There are 1 million .edu users 2) most .edu users have high speed internet access 3) (From 1, 2) 1 million people can currently share DVD's at high speeds I hope he is ashamed of having made this argument. I would be. sam th sam@uchicago.edu http://www.abisource.com/~sam/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 11:55:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19455 for dvd-discuss-outgoing; Sat, 1 Jul 2000 11:55:04 -0400 Received: from ogopogo.flash.net (ogopogo.flash.net [209.30.2.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19452 for ; Sat, 1 Jul 2000 11:55:03 -0400 Received: from debian.org (p231-145.atnt6.dialup.ftw1.flash.net [209.30.231.145]) by ogopogo.flash.net (8.9.3/Pro-8.9.3) with ESMTP id KAA25411; Sat, 1 Jul 2000 10:57:26 -0500 (CDT) Message-ID: <395E14DF.A7A359E3@debian.org> Date: Sat, 01 Jul 2000 10:57:19 -0500 From: "Matthew R. Pavlovich" X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: decss@lists.lemuria.org, robin@eff.org, ehernstadt@FGKS.COM, mpav@debian.org, dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos References: <20000628083824.B13782@lemuria.org> <200006280221.WAA06313@tisch.mail.mindspring.net> <20000625104940.B3818@lemuria.org> <200006280221.WAA06313@tisch.mail.mindspring.net> <200007011158.HAA07407@granger.mail.mindspring.net> <395E0E94.1599544@eff.org> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The part here: 15. We converted the .VOB file to DivX, a highly compressed video format designed so that a DVD movie can be stored on a single CD-ROM having capacity limited to 650 megabytes. Converting from MPEG2 to MPEG4 does not yield this high of a compression rate. 4gig to 650Mb.. I don't think so. That IRC chat log is totally fabricated. I am going to prove it. (More info to come) Can we get a court order to identify the user of the IP address they forgot to leave out? (24.8.102.212) That will allow us to see if that user is connected to CMU. Additionally, cable modem transfers are typically limited to 128k/s upload. Meaning the most he could bring The Matrix down at, is 128k/s. and at that rate, would take over 11 hours at full theoretical max. More lies-- 23. There are over 1 million Internet hosts in the .EDU domain, indicating educational institutions. Most large universities maintain 10 megabit LANs. It is therefore my conservative estimate that at least one million university students and faculty around the world presently have the capability to transfer and share DivX files of feature-length movies in less than 20 minutes. Home cable modems are widely available that support transmission at up to 10 megabits per second. That is internally 10mb/s. Out to the world, you have a diminishing returns. The connections to the universities are not 10mb/s to each other, and at no time could any one student have full bandwidth at his/her disposal. This is like saying, I-65 runs b/w Indy and Chicago, and since my car can do 150Mph (the speedometer tells me, not that I have ever been able to prove it) and I can drive the 150 Miles b/w the cities in 1 hour. This is a very bad professor.. I would not recommend to anyone to take his courses. More misleading info-- 31. Available bandwidth has been increasing in the United States at a rate of 5-10 times that of CPU processor speeds. Processors are currently doubling in speed approximately every 18 months. Bandwidth is completely different than CPU processing. Bandwidth has a diminishing returns property associated with it, whereas CPU speed does not. For example: If I have a University with 1000 students and faculty and I upgrade the current 10Mbps backbone to 100Mbps, the resulting improvement of performance to each of the persons in the university is not 100Mbps, it is 100Mbps/1000 persons, or .1 Mbps. aka 100k/s. This of course, does not take into account protocal, and transport overhead that is transmitted in addition to the information for the person. Item to discredit-- 32. Compression technology is constantly improving. Using MPEG4, it is possible to watch a DivX in full motion at a bandwidth of 858 kilobits per second, lower than T1 bandwidth. If the Professor really knew what he was talking about, he would know that DivX uses MPEG4, whereas in this case, it seems they were using VCD technology, which we already demonstrated was of much lower quality. MRP Robin Gross wrote: > > Hi folks: > > Please let us know a.s.a.p. your thoughts on this declaration. We must > respond to it at once. Thank you all for your help! > > Best, > Robin > > John Young wrote: > > > > We offer the declaration for MPAA by Michael Shamos, professor > > of computer science at Carnegie Mellon and an intellectual property > > lawyer: > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > > > He declares his findings and opinions on several experiments using > > DeCSS on DVDs and DivXes. > > > > Here is an IRC session of Professor/Lawyer Shamos ensaring an > > unwary party in DivX movie trading: > > > > 20. To obtain a DivX of a different movie from the Internet, we went to > > Internet Relay Chat and joined to #divx again under the name VaioBoy. > > We offered to trade "Sleepless in Seattle" for other movies. "[deleted]" > > offered to trade with us. Here is the chat log that resulted from this > > session: > > > > Session Start: Tue June 27 23:15:45 2000 > > Session Ident: [deleted] ([deleted]) > > > > anyone have any divxes to trade for sleepless in seattle? > > <[deleted]> sure..... army of darkness, entrapment, the matrix, the rock, > > fight club (2cd set), the professional, cruel intentions, half-baked > > oh wow > > lemme see > > fight club is 2 cds? Is there a 1cd rip out there? > > actually the matrix sounds great > > where do you want me to send sleepless? > > <[deleted]> i dunno if fight club is on 1 cd. > > <[deleted]> but it's 2x the quality > > <[deleted]> lemme just make you an acct on my ftp. > > <[deleted]> do you have an ftp? > > nope, but I can upload > > I don't suppose you could install serv-u? > > <[deleted]> you can upload and download ;-) cause that's where the matrix > > is : ) > > <[deleted]> I have an ftp. lemme make you an acct. > > <[deleted]> 1sec. > > <[deleted]> do you have a static ip??? > > yep > > <[deleted]> k > > hold on, lemme switch over to that > > I have two net interfaces > > I'll be back on irc in just a minute > > <[deleted]> just what is it? > > <[deleted]> ok > > 128.2.179.23 > > <[deleted]> k > > ok fixed [handle changed] > > <[deleted]> k > > <[deleted]> do you have ICQ? > > nope > > I hate that program :) > > <[deleted]> k > > so where should I connect to? > > if you will permit 2 logins, I can upload and download > > simultaneously. > > I have enough bandwidth that there shouldn't be a problem. > > <[deleted]> you're gonna have to wait a minute. > > <[deleted]> I'm moving the matrix into the ftp hdd at the moment. > > awesome > > thanks man > > you want me to start upping now? > > <[deleted]> yeah. sure > > ok, where do I connect to? > > <[deleted]> oh sorry > > <[deleted]> :) > > np+) > > <[deleted]> 24.8.102.212:21 vaioboy / vaioboy > > holy shit > > we are getting pretty good rates > > <[deleted]> yeap. > > thanks again man > > <[deleted]> np > > I'll upload more if I come across anything you don't have > > <[deleted]> ok > > <[deleted]> I think I want to start a trading club. > > <[deleted]> of just DivX's. > > that would be really cool > > I have enough bandwidth to courier things > > <[deleted]> I've just ordered a 60gig hdd. > > how much did you pay for that? > > <[deleted]> 265 > > shit > > maxtor > > <[deleted]> yeap > > I'm going to get the IBM 75 > > just because it's 7200 RPM > > > > <[deleted]> that's too much : ) > > haha > > NEVER! > > <[deleted]> 5400 is just fine > > well > > my 9gig cheetah will still smoke it > > <[deleted]> I've only got 800 bucks to last me until september : ) > > but that's ok, it's to store movies anyway. > > ok man > > <[deleted]> that's what my 60gig is going to be for. just movies. > > I am going to go code for a while > > Thanks again > > <[deleted]> ok. np > > msg me sometime if you want anything > > vaiokid/boy > > <[deleted]> alright > > > > Session Close: Tue Jun 27 23:42:21 2000 > > -- > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > Robin D. Gross - Cyberspace Attorney @ Law > Electronic Frontier Foundation > 1550 Bryant Street, Suite 725, San Francisco, CA 94103 > t: 415.436.9333 (x107) f: 415.436.9993 > e: robin@eff.org w: http://www.eff.org > RDG direct line: 415.863.5459 direct fax: 415.863.7154 > EFF's Campaign for Audiovisual Free Expression: > http://www.eff.org/cafe > http://www.eff.org/pub/Intellectual_property/DVDCCA_case > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 12:54:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19755 for dvd-discuss-outgoing; Sat, 1 Jul 2000 12:54:20 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19752 for ; Sat, 1 Jul 2000 12:54:19 -0400 Received: from 216-164-137-115.s369.tnt4.lnhva.md.dialup.rcn.com ([216.164.137.115] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 138QZf-0005tN-00 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 12:56:59 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Sat, 1 Jul 2000 12:54:10 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <395E14DF.A7A359E3@debian.org> MIME-Version: 1.0 Message-Id: <00070112562501.00801@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 01 Jul 2000, you wrote: > > Can we get a court order to identify the user of the IP address they > forgot to leave out? (24.8.102.212) That will allow us to see if that > user is connected to CMU. > Don't know if this helps, but [jeremy@yuggoth jeremy]$ nslookup 24.8.102.212 Server: ns1.dns.rcn.net Address: 207.172.3.8 Name: cx461121-a.mrdn1.ct.home.com Address: 24.8.102.212 From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 15:05:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20660 for dvd-discuss-outgoing; Sat, 1 Jul 2000 15:05:41 -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 PAA20657 for ; Sat, 1 Jul 2000 15:05:37 -0400 Message-ID: <20000701190747.11257.qmail@web515.mail.yahoo.com> Received: from [24.28.154.44] by web515.mail.yahoo.com; Sat, 01 Jul 2000 12:07:47 PDT Date: Sat, 1 Jul 2000 12:07:47 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Jeremy Erwin wrote: > Name: cx461121-a.mrdn1.ct.home.com > Address: 24.8.102.212 It seems they have a web site with an obscene graphic on port 80, one list one file of "fonts" to on their "files" page, a https server on port 443, and an ftp server on port 21. The webpage title is: "= E S P =- Elite Saboteur Phreakers_files". Here's what Netcraft said about them: 24.8.102.212 is running Microsoft-IIS/5.0 on Windows 2000 Here's their ftp banner: bash# ftp 24.8.102.212 Connected to 24.8.102.212. 220 Serv-U FTP-Server v2.5d for WinSock ready... Well, alright here's the full story: Interesting ports on cx461121-a.mrdn1.ct.home.com (24.8.102.212): Port State Protocol Service 21 open tcp ftp 79 open tcp finger 80 open tcp http 113 open tcp auth 135 open tcp loc-srv 137 filtered tcp netbios-ns 138 filtered tcp netbios-dgm 139 filtered tcp netbios-ssn 443 open tcp https 831 open tcp unknown 1025 open tcp listen 1026 open tcp nterm 1080 filtered tcp socks TCP Sequence Prediction: Class=random positive increments Difficulty=21119 (Worthy challenge) Remote operating system guess: Windows 2000 RC1-RC3 the whole story... ________________________________________________________ __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 15:09:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20750 for dvd-discuss-outgoing; Sat, 1 Jul 2000 15:09:36 -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 PAA20747 for ; Sat, 1 Jul 2000 15:09:35 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id PAA04197; Sat, 1 Jul 2000 15:12:16 -0400 Date: Sat, 1 Jul 2000 15:12:16 -0400 From: Jim Bauer Message-Id: <200007011912.PAA04197@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Newsgroups: local.dvd-discuss In-Reply-To: <200007011158.HAA28856@granger.mail.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: >We offer the declaration for MPAA by Michael Shamos, professor >of computer science at Carnegie Mellon and an intellectual property >lawyer: > > http://cryptome.org/mpaa-v-2600-dms.htm > >He declares his findings and opinions on several experiments using >DeCSS on DVDs and DivXes. The following quoted ">" contents have been excerpted from http://cryptome.org/mpaa-v-2600-dms.htm: > 14. We repeated all of the above steps and ran DeCSS again. It > located 10 files on the DVD, five of which had the extension > .VOB. We clicked the button on the DeCSS window labeled "Merge VOB > files." This resulted in a single large .VOB file. We successfully > played this file using Media Player to view "Sleepless in Seattle" > (in this case with one of the alternate sound tracks) without the > DVD inserted in the drive. Dosn't mention anything about having or losing the ability to do the naviagation and accessing the special features beyond a secondary audio channel. > 15. We converted the .VOB file to DivX, a highly compressed video > format designed so that a DVD movie can be stored on a single CD-ROM > having capacity limited to 650 megabytes. Failed to specify size of resulting file. We only have a suggestion that it might be less then 650MB. > 21. We thus obtained a free copy of the DivX for the film "The > Matrix" by trading a copy of "Sleepless in Seattle." Using basic > cable modem service (approximately 640 kilobits per second), it took > about 6 hours to download the DivX. The quality of the video was > substantially better than VHS tape but not quite as good as a DVD. So he admits it is not as good. But we don't have anything saying how bad it is except for the additional subjective statement that is was better the VHS (which of course sucks). > 22. We then conducted further experiments to determine how long it > would take to share the DivX of "The Matrix" with others. Using a 10 > megabit LAN, the file transfer took less than 20 minutes. Using a > 100 megabit LAN available at Carnegie Mellon, the transfer of the > compressed DivX of "The Matrix" was accomplished in three minutes. Again we have no idea how large the file is, so it is not possible to trully check the figures. So, time for some assumptions. If we assume 30% utilization for a 10Mb/s ethernet (which is about the most you can expect on a non-otherwise-idle, non-switched 10Mb/s ethernet). That gives us a file size of 450MB. Assuming that file size is accurate, then the 100Mb/s net transfer yeilded about 20Mb/s. It was never stated how large the original DVD files were. We only know it was larger then the max Windows 98 file size. It was implied that the file may have been larger the 5GB. If my math is correct that would be a further compression to 9% the size of the DVD. BTW, there choice of "Sleepless in Seattle" was a good choice for them. There is very little action/movement in that movie. That helps the compression a lot. > 23. [snip] Home cable modems > are widely available that support transmission at up to 10 megabits > per second. The other day I did some speed tests with my cable modem service. I tried lots of different sites on the Internet and got a peek rate of 456kb/s. That is the downstream rate. The upstream rate woud be much lower because less bandwidth is allocated for traffic in that direction. So, using this declaration as evidence, are charges going to be filed against Shamos a.k.a. VaioBoy a.k.a VioKid and [deleted] for their actes? :-) -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 15:13:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20801 for dvd-discuss-outgoing; Sat, 1 Jul 2000 15:13:33 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20798 for ; Sat, 1 Jul 2000 15:13:32 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 138SkO-0008Fx-00; Sat, 01 Jul 2000 12:16:12 -0700 Date: Sat, 1 Jul 2000 12:16:12 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000701121612.C9454@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/1.0.1i In-Reply-To: ; from sam@uchicago.edu on Sat, Jul 01, 2000 at 11:33:35AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > On Sat, 1 Jul 2000, Jeremy Erwin wrote: > > > 25. Internet 2 is designed to run at 1 gigabit per second. It is > > currently deployed at several universities. At that speed it would > > take less than a minute to download a two-hour DivX file. An entire > > uncompressed DeCSSed DVD could be transferred in less than 10 minutes. > > > > And most students have access to the full bandwidth of Internet2? > > It's not just for supercomputing applications, but can be used for > > pr0n and DiVX trading? > > Yeah, the U of C has 655 Mbps to the outside world, but how much of that > do they let me use? not much. I know that UC Berkeley has rate-limited the dorms. (Actually, they did this in an absurd way: they rate-limit dorm-to-Internet but not dorm-to-campus or campus-to-Internet, so anyone who knows how to use proxies, caches, or tunnels can circumvent the limitation. This is fewer than 5% of the people in undergrad dorms, though.) Every University with Internet 2 access has limited full Internet 2 bandwidth access to qualified researchers, under ordinary circumstances, as far as I know. On the other hand, some academic networks like CalREN2 do carry "regular" traffic between campuses. Non-research users might be subject to rate limits on that traffic, though. It is important to note that "Internet 2" is a marketing name for a particular high-bandwidth backbone, and it's _not_ a project to produce a "sequel to the Internet" or anything. Internet 2 will never be available to the general public. Professor Shamos did his experiment from an on-campus CS department at CMU (do a reverse lookup on the IP address). At almost any university, on-campus CS workstations get the full benefit of any special academic peering relationships, and non-rate-limited bandwidth use. Shamos notes that 10 Mbps networks at CMU extend to the dorms, but he does not say whether their access to the Internet is rate-limited or not. If I have a water main running into my house, but the water company installed a valve which limits my consumption of water to 1 L/s, that water main is useful for bragging, but not much else. A CS professor, on the other hand, might have several water mains running into his house, and, because his important research (like contracts with Proskauer Rose) must not be delayed, gets full access to all of them. David Wagner, do you know any network folks at Berkeley who can talk about peering relationships, access to routes, and rate limitations? Obviously the net is getting a lot faster quickly, and will continue to do so. Plaintiffs should not be allowed to exaggerate these factors to inflate their claims of harm. (And their claims of harm should be irrelevant because we should have a first amendment right to publish computer programs, but Kaplan doesn't seem to care about that very much.) One more thing: students at a particular institution share that institution's bandwidth (unlike home users). If there are 1 million students with access to 1.544 Mbps links to fast backbones, that does not mean that these students have a total of 1.544 Tbps bandwidth to those backbones. Many of those T1 links are _the same_ because these students are at _the same schools_. If 5 students at the same school decide to share movies at once, they will not each independently manage to use the entire bandwidth of the school -- typically they each use a portion of the total bandwidth. (We can't say how it will be broken down or whether the students will be able to exchange data at more or less than 1/5 the rate they previously could -- but the _total_ of their bandwidth utilizations must be less than the total bandwidth available to the school.) In addition, if all of those students started to share DVDs, the network administrators would react by rate-limiting them, since it's absurd to think that a school would allow all of its bandwidth to be used by a few students. (It's not because they're sharing DVDs, but because they are using tons of bandwidth, that this would happen.) So these students simultaneously sharing movies have managed to degrade their network connectivity and get their share of the campus bandwidth reduced. (This has already happened with people trading MP3s, and it didn't depend one way or another on whether that activity was legal, as far as I can tell.) Plaintiffs might think that students would arrange to serialize their movie-trading so that they're not fighting over bandwidth -- first I copy, then you copy, then he copies, on a schedule, so that we don't slow one another down. This is what would have happened in the era of UUCP. UUCP would have been positively deal for piracy of any media over high-bandwidth links -- pathalias is more innovative than Napster. However, the college student of the 1990s is impatient, self-centered, and a fluent but unsophisticated computer user. He or she demands immediate gratification and refuses to do research -- just the sort of person to be an ineffective pirate, squandering shared resources and raising the ire of network administrators. -- 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 Jul 1 15:29:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20896 for dvd-discuss-outgoing; Sat, 1 Jul 2000 15:29:56 -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 PAA20893 for ; Sat, 1 Jul 2000 15:29:55 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id PAA04496; Sat, 1 Jul 2000 15:32:36 -0400 Date: Sat, 1 Jul 2000 15:32:36 -0400 From: Jim Bauer Message-Id: <200007011932.PAA04496@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Newsgroups: local.dvd-discuss In-Reply-To: <00070112562501.00801@yuggoth> References: <395E14DF.A7A359E3@debian.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin wrote: >On Sat, 01 Jul 2000, you wrote: >> >> Can we get a court order to identify the user of the IP address they >> forgot to leave out? (24.8.102.212) That will allow us to see if that >> user is connected to CMU. >> >Don't know if this helps, but > >[jeremy@yuggoth jeremy]$ nslookup 24.8.102.212 >Server: ns1.dns.rcn.net >Address: 207.172.3.8 > >Name: cx461121-a.mrdn1.ct.home.com >Address: 24.8.102.212 > Would appear to be a Connecticut cable modem customer. "mrdn" is probably an abbreviation for a city or county. A search on that IP at deja.com yeilded 5 hits. 1 posting to alt.hackers.groups and 4 to alt.hackers. All on the 21-23 of January 2000. Author was listed as "iNTeRFeCio " mindless.com is a site that provides free email accounts. None of this tells us if they made it up or not. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 16:09:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21165 for dvd-discuss-outgoing; Sat, 1 Jul 2000 16:09:13 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21162 for ; Sat, 1 Jul 2000 16:09:12 -0400 Received: from 216-164-138-108.s108.tnt5.lnhva.md.dialup.rcn.com ([216.164.138.108] helo=yuggoth) by smtp02.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 138TcG-00034M-00 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 16:11:52 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Sat, 1 Jul 2000 16:04:38 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <200007011932.PAA04496@emperor.hwrd1.md.home.com> MIME-Version: 1.0 Message-Id: <00070116111900.01533@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 01 Jul 2000, you wrote: > >[jeremy@yuggoth jeremy]$ nslookup 24.8.102.212 > >Server: ns1.dns.rcn.net > >Address: 207.172.3.8 > > > >Name: cx461121-a.mrdn1.ct.home.com > >Address: 24.8.102.212 > > > > Would appear to be a Connecticut cable modem customer. "mrdn" is > probably an abbreviation for a city or county. Meriden, Connecticut... The cx may refer to "Cox Communications", a local cable provider... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 16:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21322 for dvd-discuss-outgoing; Sat, 1 Jul 2000 16:27:27 -0400 Received: from dial222.roadrunner.com (dial222.cybermesa.com [209.12.75.222] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21319 for ; Sat, 1 Jul 2000 16:27:25 -0400 Received: (from paul@localhost) by dial222.roadrunner.com (8.8.7/8.8.7) id OAA01493 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 14:30:43 -0600 Date: Sat, 1 Jul 2000 14:30:41 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Message-ID: <20000701143041.A1467@localhost> References: <200007011932.PAA04496@emperor.hwrd1.md.home.com> <00070116111900.01533@yuggoth> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00070116111900.01533@yuggoth>; from jeremy@gmu.edu on Sat, Jul 01, 2000 at 04:04:38PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 01, 2000 at 04:04:38PM -0400, Jeremy Erwin wrote: > On Sat, 01 Jul 2000, you wrote: > > > >[jeremy@yuggoth jeremy]$ nslookup 24.8.102.212 > > >Server: ns1.dns.rcn.net > > >Address: 207.172.3.8 > > > > > >Name: cx461121-a.mrdn1.ct.home.com > > >Address: 24.8.102.212 > > > > > > > Would appear to be a Connecticut cable modem customer. "mrdn" is > > probably an abbreviation for a city or county. > > Meriden, Connecticut... The cx may refer to "Cox Communications", a local > cable provider... Line 12 suggests the possibility that this is in or near Cleveland Ohio: $ traceroute -i ppp0 24.8.102.212 traceroute to 24.8.102.212 (24.8.102.212), 30 hops max, 40 byte packets 1 sf-usr.cybermesa.com (209.12.75.4) 3262.393 ms 104.651 ms 103.337 ms 2 sf-router.cybermesa.com (209.12.75.1) 113.060 ms 103.389 ms 106.050 ms 3 204.134.78.113 (204.134.78.113) 115.826 ms 106.597 ms 108.009 ms 4 albuqu-nm-1-a12-0.200.espire.net (206.222.101.109) 106.479 ms 106.654 ms +108.009 ms 5 e2-elpa-ad-11-0.espire.net (206.222.97.7) 116.593 ms 116.565 ms 118.164 +ms 6 e1c-san-ad-12-0.espire.net (206.222.97.9) 136.414 ms 146.726 ms 138.043 +ms 7 mae-west1.agis.net (198.32.136.63) 146.569 ms 146.610 ms 138.210 ms 8 206.84.239.81 (206.84.239.81) 146.589 ms 146.473 ms 157.963 ms 9 ga001a.chicago3.agis.net (206.84.252.33) 246.611 ms 246.478 ms 237.850 ms 10 a0-0.1.chicago2.agis.net (205.254.173.250) 256.626 ms 256.706 ms 257.794 +ms 11 bb-temp.aads.home.net (206.220.243.30) 246.392 ms 353.551 ms 227.963 ms 12 c1-pos3-0.clevoh1.home.net (24.7.64.174) 246.354 ms 246.604 ms 238.162 ms ^^^^^^^ 13 24.7.65.249 (24.7.65.249) 266.338 ms 257.104 ms 247.849 ms 14 bb1-pos1-1.rdc1.ct.home.net (24.7.73.226) 256.408 ms 246.723 ms 247.861 +ms 15 10.0.248.14 (10.0.248.14) 246.404 ms 257.005 ms 247.948 ms 16 10.0.248.54 (10.0.248.54) 256.242 ms 247.160 ms 247.992 ms 17 cx461121-a.mrdn1.ct.home.com (24.8.102.212) 256.350 ms 256.721 ms +1097.944 ms $ date Sat Jul 1 11:09:57 MDT 2000 From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 16:44:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21443 for dvd-discuss-outgoing; Sat, 1 Jul 2000 16:44:33 -0400 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21440 for ; Sat, 1 Jul 2000 16:44:32 -0400 Received: from 209-122-203-30.s284.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.30] helo=yuggoth) by smtp03.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 138UAT-000502-00 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 16:47:13 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Sat, 1 Jul 2000 16:39:02 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <20000701143041.A1467@localhost> MIME-Version: 1.0 Message-Id: <00070116463900.02067@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 01 Jul 2000, you wrote: > On Sat, Jul 01, 2000 at 04:04:38PM -0400, Jeremy Erwin wrote: > Line 12 suggests the possibility that this is in or near Cleveland Ohio: > 12 c1-pos3-0.clevoh1.home.net (24.7.64.174) 246.354 ms 246.604 ms 238.162 ms > ^^^^^^^ Why do I get the feeling that this thread is increasingly less likely to bear fruit? My traceroutes don't go anywhere near Ohio. I'm in Northern Virginia. [jeremy@yuggoth jeremy]$ /usr/sbin/traceroute -i ppp0 24.8.102.212 traceroute to 24.8.102.212 (24.8.102.212), 30 hops max, 38 byte packets 1 tnt6.lnhva.md.rcn.net (10.65.28.31) 150.709 ms 148.613 ms 139.203 ms 2 ge6-0-0.border1.lnh.md.rcn.net (207.172.11.131) 138.488 ms 138.963 ms 139.182 ms 3 fe1-0-0.core1.lnh.md.rcn.net (207.172.15.4) 138.497 ms 128.943 ms 139.194 ms 4 poet0-1-1.core1.tco.va.rcn.net (207.172.9.189) 138.706 ms 138.973 ms 139.178 ms 5 fe1-1-0.border1.tco.va.rcn.net (207.172.9.230) 138.475 ms 138.951 ms 129.914 ms 6 mae-east.home.net (192.41.177.148) 137.758 ms 138.976 ms 139.385 ms 7 c1-pos9-0.washdc1.home.net (24.7.72.53) 138.278 ms 138.932 ms 139.180 ms 8 c1-pos1-0.cmdnnj1.home.net (24.7.65.86) 148.482 ms 148.207 ms 139.193 ms 9 c1-pos5-0.nycmny1.home.net (24.7.65.230) 148.504 ms 148.942 ms 139.188 ms10 24.7.69.1 (24.7.69.1) 148.565 ms 148.970 ms 150.124 ms 11 bb1-pos4-0-0.rdc1.ct.home.net (24.7.72.50) 157.553 ms 148.956 ms 149.186 ms 12 10.0.248.62 (10.0.248.62) 158.473 ms 158.988 ms 159.202 ms 13 10.0.248.54 (10.0.248.54) 158.490 ms 149.034 ms 159.196 ms 14 cx461121-a.mrdn1.ct.home.com (24.8.102.212) 198.547 ms 218.908 ms 239.152 ms From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 16:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21536 for dvd-discuss-outgoing; Sat, 1 Jul 2000 16:50:09 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21532 for ; Sat, 1 Jul 2000 16:50:08 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FX100FCTDYVUF@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 13:52:07 -0700 (PDT) Date: Sat, 01 Jul 2000 13:54:26 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-reply-to: To: dvd-discuss@eon.law.harvard.edu Message-id: <0FX100FCUDYVUF@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: <200007011158.HAA28856@granger.mail.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >We offer the declaration for MPAA by Michael Shamos, professor > >of computer science at Carnegie Mellon and an intellectual property > >lawyer: > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > > >He declares his findings and opinions on several experiments using > >DeCSS on DVDs and DivXes. > > Choice quotes > > 25. Internet 2 is designed to run at 1 gigabit per second. It is > currently deployed at several universities. At that speed it would > take less than a minute to download a two-hour DivX file. An entire > uncompressed DeCSSed DVD could be transferred in less than 10 minutes. Internet 2 is deployed in only a handful of educational institutions and has no effect on the ethernet speed of an individual's machine. The interconnect speed measurements shown by our friend of the court briefs still stand as the essential bottleneck for transfer speed. "DivX file" is not properly characterized (I am assuming that there are a number of quality settings for this codec that can vary the characteristics of the size.) > And most students have access to the full bandwidth of Internet2? > It's not just for supercomputing applications, but can be used for > pr0n and DiVX trading? I don't know about that. Perhaps someone from Caltech, or Berkeley or wherever they have this set up can chime in as to its actual deployment within the limit environment that it is available at. I don't think its relevant though, since they have no addressed > 31. Available bandwidth has been increasing in the United States at a > rate of 5-10 times that of CPU processor speeds. Processors are > currently doubling in speed approximately every 18 months. > > So bandwidth is doubling every 1.8 - 3.6 months? This is a confusing > statemennt, and possibly refers to aggregate bandwidth, and not, > neccesaritly to the bandwidth available to any one user. More succinctly, CPUs are not the bandwidth bottleneck (Intel's advertisements are fraudulant on this point.) CPUs need only be compatible with themselves and operate in a limited environment (usually a single machine.) There is nothing that holds back their technological progress. The internet is the most backward compatible computer system ever created. Thus the progress here is extremely limited. To improve transfer speed performance beyond today's reasonable and theoretical limits, you have to improve the state of the art in ethernet. Improving the CPU will not help. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 16:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21542 for dvd-discuss-outgoing; Sat, 1 Jul 2000 16:50:09 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21535 for ; Sat, 1 Jul 2000 16:50:08 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FX100FCTDYVUF@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 13:52:07 -0700 (PDT) Date: Sat, 01 Jul 2000 13:54:26 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos In-reply-to: <395E14DF.A7A359E3@debian.org> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FX100FCYDYVUF@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > 15. We converted the .VOB file to DivX, a highly compressed video format designed so > that a DVD movie can be stored on a single CD-ROM having capacity limited to 650 > megabytes. > > Converting from MPEG2 to MPEG4 does not yield this high of a compression rate. 4gig > to 650Mb.. I don't think so. Not without further down conversion. So the conversion process must have lost resolution, dropped frames, decreased quality significantly, or was an abbreviated version of the DVD. It is on the onus of the MPAA, I believe to accurately quantify this. > That IRC chat log is totally fabricated. I am going to prove it. (More info to come) Its a bunch of text. So yes, its quite possible to have been totally fabricated. It could even have been "acted out" (it looks a bit to cliche ICQ-l33t-speak to me). There needs to be more credible evidence that this can be reproduced "live". > Can we get a court order to identify the user of the IP address they forgot to leave out? > (24.8.102.212) That will allow us to see if that user is connected to CMU. A Whois on that address shows it to be an @home address: cx461121-a.mrdn1.ct.home.com I don't know if they use static IPs or assignable IP addresses. But this too could have been faked. Incidentally @home has policies about serving up bits. They monitor their network traffic to see who is doing this sort of thing, and would find and cut this guy off in short order anyways. > Additionally, cable modem transfers are typically limited to 128k/s upload. Meaning the > most he could bring The Matrix down at, is 128k/s. and at that rate, would take over 11 > hours at full theoretical max. Well, the transcript refers to "great transfer rates", but does not indicate that the transfer ever completed. How do we know that one end user or the other did not decide to simply abort because it would take far too long? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 17:12:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21715 for dvd-discuss-outgoing; Sat, 1 Jul 2000 17:12:40 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21712 for ; Sat, 1 Jul 2000 17:12:39 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FX100ADBEV7FM@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 14:11:31 -0700 (PDT) Date: Sat, 01 Jul 2000 14:13:38 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-reply-to: To: dvd-discuss@eon.law.harvard.edu Message-id: <0FX100ADDEV7FM@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: <200007011158.HAA28856@granger.mail.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > >We offer the declaration for MPAA by Michael Shamos, professor > >of computer science at Carnegie Mellon and an intellectual property > >lawyer: > > > > http://cryptome.org/mpaa-v-2600-dms.htm Actually the most damning thing in here appears to be #24. What exactly is Nortel's AC power line technology about? I think I've heard it in passing, however is this technology for real? I mean its cool and all, but it damages the notion that internet transfer speeds will hit a brick wall at the point of entry into people's homes. (The 10 gigabit ethernet discussion also seems to be similarly damning.) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 17:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21847 for dvd-discuss-outgoing; Sat, 1 Jul 2000 17:27:27 -0400 Received: from mail3.registeredsite.com (root@mail3.registeredsite.com [209.35.159.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21844 for ; Sat, 1 Jul 2000 17:27:26 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail3.registeredsite.com (8.9.3/8.9.3) with ESMTP id QAA25808 for ; Sat, 1 Jul 2000 16:26:07 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id A32EBA5002C; Sat, 01 Jul 2000 17:31:26 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sat, 01 Jul 2000 17:30:04 -0400 Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos From: Jed Borod To: Message-ID: In-Reply-To: <200007011932.PAA04496@emperor.hwrd1.md.home.com> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu on 7/1/00 3:32 PM, Jim Bauer wrote: > Would appear to be a Connecticut cable modem customer. "mrdn" is > probably an abbreviation for a city or county. I'd guess it's Meriden, CT. I'm surprised this guy is so blatant in running servers off his @home connection, TCI.net is fairly anal about usage. Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 1 17:36:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21950 for dvd-discuss-outgoing; Sat, 1 Jul 2000 17:36:02 -0400 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21947 for ; Sat, 1 Jul 2000 17:36:01 -0400 Received: from 209-122-203-30.s284.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.30] helo=yuggoth) by smtp03.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 138UyI-0002Et-00 for dvd-discuss@eon.law.harvard.edu; Sat, 1 Jul 2000 17:38:42 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Sat, 1 Jul 2000 17:34:48 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: MIME-Version: 1.0 Message-Id: <00070117380500.02310@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 01 Jul 2000, you wrote: > on 7/1/00 3:32 PM, Jim Bauer wrote: > > > Would appear to be a Connecticut cable modem customer. "mrdn" is > > probably an abbreviation for a city or county. > > I'd guess it's Meriden, CT. I'm surprised this guy is so blatant in running > servers off his @home connection, TCI.net is fairly anal about usage. On that note, I went on to IRC and recorded this interesting bit: #divx irc.concentric.net I don't have a OC 48 I have transfered from them then I can get up to 600kbs on my cable :) heh you have not kid. What do you mean? your on a capped @Home connect which cant do more then 256k up to anything pls msg me if you have eye of the beholder! I have over 50 divx to trade and a few vcds! You don't know shit *** BabyClAzy has quit (Ping timeout: 360 seconds) I don't have docsis considering i WORK for @Home i think i do Considering your a kook and I know what I get lameass 600k on cable aint shit I know but its good for cable From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 03:59:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA26065 for dvd-discuss-outgoing; Sun, 2 Jul 2000 03:59:28 -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 DAA26062 for ; Sun, 2 Jul 2000 03:59:26 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 9413399C85; Sun, 2 Jul 2000 01:02:06 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 69008938C1 for ; Sun, 2 Jul 2000 01:02:06 -0700 (PDT) Date: Sun, 2 Jul 2000 01:02:06 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <200007011912.PAA04197@emperor.hwrd1.md.home.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 I think what's most important here is probably to point out that if loss of quality is not considered important, DeCSS need not be used--someone could just use a video capture card (or point a camcorder at the screen). From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 05:54:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA27325 for dvd-discuss-outgoing; Sun, 2 Jul 2000 05:54:45 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA27322 for ; Sun, 2 Jul 2000 05:54:43 -0400 Received: from hoth (user-2inib2f.dsl.mindspring.com [165.121.44.79]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id CAA21897 for ; Sun, 2 Jul 2000 02:57:21 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] DMCA loophole Date: Sun, 2 Jul 2000 02:57:11 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Frank Andrew Stevenson Sent: Monday, June 26, 2000 3:24 AM >But there is nothing in the DMCA that would compell developers of _new_ DV >standards to include copy protection in the standard. No, there's nothing in DMCA to compel this, just as there was no law to compel DVD player makers to support CSS. It's the CSS license that requires copy protection for digital output, and the license was driven by Hollywood. DTCP (5C) is the likely candidate. Any recorder that wants to be able to copy the bits has to comply with the DTCP license. Betamax was fielded without any copy protection mechanism, and it seems possible that future systems could be made without any copy protection. Such systems could be made, but Hollywood would never release content on them. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 06:01:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA27522 for dvd-discuss-outgoing; Sun, 2 Jul 2000 06:01:37 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA27519 for ; Sun, 2 Jul 2000 06:01:36 -0400 Received: from hoth (user-2inib2f.dsl.mindspring.com [165.121.44.79]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id DAA26700 for ; Sun, 2 Jul 2000 03:04:18 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Debunking MPAA, Q19 Date: Sun, 2 Jul 2000 03:04:07 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal In-Reply-To: <39591BB2.5BFBDD9C@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Unfortunately neither article has any references. What, I'm supposed to cite everything I put in the FAQ? That would add another 100K at least! ;-) >If anyone can >find other articles that give different reasons for the delay in >DVD audio other then encryption worries, it would help debunk >this MPAA "example" of "harm" caused by DeCSS. See latest issue of MediaLine (www.medialinenews.com), as well as recent issues of DVD Report (print only). References to lack of authoring tools and lack of studio support. >Personal opinion: I strongly suspect that the real reason >for the "lackluster support from music labels" is that the >media holds too much data DVDs could easily hold 4 or 5 TV episodes per discs, but most TV series are released with only 2 episodes per disc. No studio has to fill up a disc just because there's lots of space. I doubt this is a concern. The main reasons are lack of players and lack of production tools. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of John Schulien Sent: Tuesday, June 27, 2000 2:25 PM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Debunking MPAA, Q19 The MPAA FAQ question 19 says: > As a graphic example of the impact of the DeCSS hack, > the rollout of DVD audio - which was to have relied on the > CSS system -- was indefinitely postponed because of the > proliferation of DeCSS, depriving consumers of the choice > of this new higher quality audio format. The openlaw answers do not directly address this point. Here is an article from 1997 that gives a different view regarding DVD audio. Of course, this was before the DMCA made encryption enforcement an overriding priority: http://www.kipinet.com/tdb/tdb_mar97/tdb-feat5.html > One of the ironies at work here, ... is that the > procession towards a DVD Audio standard is slowed > by the fact that the major record labels are not actively > pursuing DVD-Audio for the same self-interested reasons > they worked so hard to make Red Book CDs successful. > It is an irony compounded by the fact that several labels, > including Columbia and PolyGram, are owned by companies - > in this case Sony and Philips - that are also consumer > hardware manufacturers whose DVD hardware divisions' > wishes are diametrically opposed to those of the record divisions. > "The labels don't see a reason to promote [a DVD-Audio standard ...]" and this DVD faq says: http://dvdmaster.com/dvdfaq/dvdfaq.html#1.12 > The scheduled October release was delayed until mid 2000, > ostensibly because of concerns caused by the CSS crack (see 1.11), > but also because the hardware wasn't quite ready, production tools > aren't up to snuff, and there is lackluster support from music > labels. Unfortunately neither article has any references. If anyone can find other articles that give different reasons for the delay in DVD audio other then encryption worries, it would help debunk this MPAA "example" of "harm" caused by DeCSS. Personal opinion: I strongly suspect that the real reason for the "lackluster support from music labels" is that the media holds too much data -- hours and hours of CD quality audio, and this would disrupt the "74 minutes for $18.00" RIAA marketing model. I don't think that anyone in the industry has come out and said this, although I would be pleasantly surprised to be proven wrong. Anyone have any better references? - John From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 06:09:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA27668 for dvd-discuss-outgoing; Sun, 2 Jul 2000 06:09:29 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA27665 for ; Sun, 2 Jul 2000 06:09:28 -0400 Received: from hoth (user-2inib2f.dsl.mindspring.com [165.121.44.79]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id DAA02142 for ; Sun, 2 Jul 2000 03:12:10 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] EFF files DMCA comment saying CSS != "access" c ontrol Date: Sun, 2 Jul 2000 03:12:00 -0700 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 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal In-Reply-To: <20000630044154.54641.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dual-layer recordable DVDs are in the lab, but very far from reality. >despite my false premise, i believe the conclusion remains sound: with the >exception of an upstart, the production of Blank DVD media is controlled by >the DVD Forum and therefore capacity advancements that could facilitate >piracy are less than likely Sorry, the conclusion is as false as the premise. The DVD Forum does not control the production of blank media with an eye to limiting piracy. If this were true we would never have gone from 3.95G to 4.7G DVD-R or from 2.6G to 4.7G DVD-RAM. In fact, the DVD-RAM working group of the DVD Forum is already at work on a higher-density version of DVD-RAM. It might be released before the next generation of high-density DVD-ROM. Most of the DVD Forum could care less about preventing piracy. They're engineers working on creating cool new product. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Jace Cooke Sent: Thursday, June 29, 2000 9:42 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF files DMCA comment saying CSS != "access" c ontrol Dana J. Parker wrote: Sorry, I juist got off the phone with a senior VP at Pioneer (authors of the DVD-R spec) and there is absolutely no truth to the rumor that dual layer DVD blanks were ever considered as marketable. Doable, perhaps, but not feasible. And DeCSS had nothing whatsoever to do with it. Thanks for the update Dana..i think i figured out where i formed the notion that led to my earlier statements concerning unreleased 6 gig DVD blanks. As you are probably well aware the burnable DVD industry is plagued by nearly half a dozen formats/standards. Now, while Dana was refering to Pioneer's DVD-R, what I was recalling concerned the Panasonic/Toshiba DVD-RAM platform which uses quite a different media then DVD-R. I read a Slashdot article (www.slashdot.org)some months ago concerning new advances in DVD-RAM technology. It stated that in addition to 2.4 gig DVDs, larger 4.7 gig DVD-RAM media was to be released. I believe it hinted that further capacity advancements would be available in the future. I then read another slashdot article that explained that Toshiba and Panasonic were going to suspend the release of DVD Audio due to the cracking of CSS. I must have subconciously correlated the two /. articles thus making an invalid inference. My most sincere apologies. Also i have no idea if the marketing limitations concerning Pioneer's DVD-R are applicable to DVD-RAM. Finally, despite my false premise, i believe the conclusion remains sound: with the exception of an upstart, the production of Blank DVD media is controlled by the DVD Forum and therefore capacity advancements that could facilitate piracy are less than likely. Now fat tubes and whopping hard drives are an entirely different story.... ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 14:17:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30118 for dvd-discuss-outgoing; Sun, 2 Jul 2000 14:17:03 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30115 for ; Sun, 2 Jul 2000 14:17:02 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 138oLI-0003Xe-00; Sun, 02 Jul 2000 11:19:44 -0700 Date: Sun, 2 Jul 2000 11:19:44 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF files DMCA comment saying CSS != "access" c ontrol Message-ID: <20000702111944.J9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000630044154.54641.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from jtfrog@usa.net on Sun, Jul 02, 2000 at 03:12:00AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Sorry, the conclusion is as false as the premise. The DVD Forum does not > control the production of blank media with an eye to limiting piracy. If So why do we have the concept of "consumer blanks" with the space licensed players expect keys already recorded? Where does that practice originate, if not with the DVD Forum? -- 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 Jul 2 14:27:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30293 for dvd-discuss-outgoing; Sun, 2 Jul 2000 14:27:38 -0400 Received: from ts0210.bates.edu (root@ts0204.bates.edu [134.181.72.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30290 for ; Sun, 2 Jul 2000 14:27:36 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id OAA00800 for ; Sun, 2 Jul 2000 14:33:11 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 2 Jul 2000 14:33:09 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <0FX100FCUDYVUF@mta5.snfc21.pbi.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 1 Jul 2000, Paul Hsieh wrote: > > 25. Internet 2 is designed to run at 1 gigabit per second. It is > > currently deployed at several universities. At that speed it would > > take less than a minute to download a two-hour DivX file. An entire > > uncompressed DeCSSed DVD could be transferred in less than 10 minutes. > > Internet 2 is deployed in only a handful of educational institutions and has no > effect on the ethernet speed of an individual's machine. The interconnect speed > measurements shown by our friend of the court briefs still stand as the essential > bottleneck for transfer speed. Well, the U of C has Internet2 (that's why we get *655Mbps*, not 1Gbps), and I certainly don't see that kind of bandwidth. If I was doing high energy physics, and collaborating with people all over the country, they might let me do that. However, what I get to use is a 12Mbps connection, IIRC. That's plenty for me. However, I'm not trading digital video. sam th sam@uchicago.edu http://www.abisource.com/~sam/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 14:52:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30536 for dvd-discuss-outgoing; Sun, 2 Jul 2000 14:52:48 -0400 Received: from dial126.roadrunner.com (dial126.cybermesa.com [209.12.75.126] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30533 for ; Sun, 2 Jul 2000 14:52:45 -0400 Received: (from paul@localhost) by dial126.roadrunner.com (8.8.7/8.8.7) id MAA01014 for dvd-discuss@eon.law.harvard.edu; Sun, 2 Jul 2000 12:56:03 -0600 Date: Sun, 2 Jul 2000 12:56:02 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Debunking MPAA, Q19: delayed release of audio Message-ID: <20000702125602.A875@localhost> References: <39591BB2.5BFBDD9C@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Sun, Jul 02, 2000 at 03:04:07AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 02, 2000 at 03:04:07AM -0700, Jim Taylor wrote: [ ... ] > >If anyone can > >find other articles that give different reasons for the delay in > >DVD audio other then encryption worries, it would help debunk > >this MPAA "example" of "harm" caused by DeCSS. > > See latest issue of MediaLine (www.medialinenews.com), as well as recent > issues of DVD Report (print only). References to lack of authoring tools and > lack of studio support. DVD-Audio Soft Launch In July [ ... ] United News & Media by Terence P. Keegan Nearing completion on a new copy protection framework for DVD-Audio, Matsushita announced late last month its plans to roll out its first DVD-Audio players in July under its Panasonic and Technics brands. While a small slate of titles is set to accompany the hardware launch, industry insiders reveal that the issues surrounding title and hardware production--namely, the release of the new copy protection technology and delayed format support in authoring equipment--will push any significant wave of titles back to September. Recording industry sources report that some 300 multichannel masters are ready to go for authoring; if the revised authoring toolset indeed arrives early this month, a September mass-title launch is feasible. [ ... ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 17:33:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31416 for dvd-discuss-outgoing; Sun, 2 Jul 2000 17:33:03 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31413 for ; Sun, 2 Jul 2000 17:32:57 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA24543 for ; Sun, 2 Jul 2000 14:35:38 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA10311; Sun, 2 Jul 2000 13:47:43 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Declaration of Michael Shamos Date: 2 Jul 2000 13:46:34 -0700 Organization: A poorly-installed InterNetNews site Lines: 14 Distribution: isaac Message-ID: <8jo9na$a1f$1@blowfish.isaac.cs.berkeley.edu> References: <200007011158.HAA28856@granger.mail.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article , Jeremy Erwin wrote: > So bandwidth is doubling every 1.8 - 3.6 months? No, of course not. That's probably not even the right order of magnitude. This is starting to get away from my speciality, but my sources say that aggregrate Internet backbone bandwidth is doubling at a slightly slower rate than processor speeds are doubling; and this might even be an over-estimate of the rate of growth of user-visible bandwidth, since the number of users is growing, and since most users are limited by the speed of their 56K modem as much as by the backbone. As you say, Shamos's statement on bandwidth trends is puzzling. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 17:44:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA31582 for dvd-discuss-outgoing; Sun, 2 Jul 2000 17:44:52 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA31579 for ; Sun, 2 Jul 2000 17:44:50 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA26533 for ; Sun, 2 Jul 2000 14:47:32 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA10391; Sun, 2 Jul 2000 13:59:41 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Declaration of Michael Shamos Date: 2 Jul 2000 13:59:31 -0700 Organization: A poorly-installed InterNetNews site Lines: 12 Distribution: isaac Message-ID: <8joafj$a4m$1@blowfish.isaac.cs.berkeley.edu> References: <200007011158.HAA28856@granger.mail.mindspring.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In his declaration, Prof. Shamos writes: Shamos> 31. Available bandwidth has been increasing in the United States at a Shamos> rate of 5-10 times that of CPU processor speeds. Processors are Shamos> currently doubling in speed approximately every 18 months. By the way, here are two useful rules of thumb to help compare for yourself: Moore's law: Processors speeds double every year-and-a-half. Nielsen's law: The average Internet user's bandwidth grows by 50% every year. If you do the math, you'll see that Moore's law predicts a growth in CPU speeds by about 60% each year, slightly faster than the rate of growth in Internet bandwidth available to typical users. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 19:24:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32215 for dvd-discuss-outgoing; Sun, 2 Jul 2000 19:24:36 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA32212 for ; Sun, 2 Jul 2000 19:24:35 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FX300FD5FS8RM@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sun, 2 Jul 2000 16:26:32 -0700 (PDT) Date: Sun, 02 Jul 2000 16:30:02 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-reply-to: <0FX100ADDEV7FM@mta6.snfc21.pbi.net> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FX300FD6FS8RM@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > >We offer the declaration for MPAA by Michael Shamos, professor of > > >computer science at Carnegie Mellon and an intellectual property > > >lawyer: > > > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > Actually the most damning thing in here appears to be #24. What exactly is > Nortel's AC power line technology about? I think I've heard it in passing, however > is this technology for real? I mean its cool and all, but it damages the notion that > internet transfer speeds will hit a brick wall at the point of entry into people's > homes. > > (The 10 gigabit ethernet discussion also seems to be similarly damning.) Aha! I've found something (google to the rescue): http://slashdot.org/articles/99/05/31/1418245.shtml#473 Note: "1) It can't go over transformers   Well, no. A transformer is the physical limit of any kind of powerline network, since it gibbers up the signal so much. Powerline can be used to distribute broadband once it reaches the home, but it can't carry the signal TO the home."  In other words, if this guy is to be believed, this technology has nothing to do with connecting people to the internet. Other links: http://www.exp-math.uni-essen.de/~vinck/plc/homenetworking.htm http://www.tradespeak.com/htmldocs/1848.html http://www.intelogis.com/power/whitepaper.html http://news.cnet.com/news/0-1004-201-343080-0.html?pt.ms..feed.ne_home So it seems that Nortel appears to have all but abandoned this idea, nobody can get above 1Mb/s and nobody has a product that goes beyond home networking. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 20:50:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00746 for dvd-discuss-outgoing; Sun, 2 Jul 2000 20:50:38 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA00743 for ; Sun, 2 Jul 2000 20:50:37 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id TAA31255 for ; Sun, 2 Jul 2000 19:53:05 -0500 Message-ID: <395FE53E.33B16477@mninter.net> Date: Sun, 02 Jul 2000 19:58:38 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.net> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://slashdot.org/article.pl?sid=00/07/02/1814228&mode=thread That article on slashdot lead me to these two articles: http://www.techreview.com/articles/july00/fairley.htm http://www.techreview.com/articles/ma99/hecht.htm These articles discuss the bleeding edge of fiber optics routing technology, here are some choice quotes: > Telephone usage accounts for some increase, including the spread of > fax machines and mobile phones. But the most dramatic growth has > been from Internet traffic, which roughly doubles each year. > According to David Clark, senior research scientist at MIT’s > Laboratory for Computer Science, “The ability to get bits down a > fiber is growing faster than Moore’s Law,” which predicts the > doubling of computing power every 18 months. At the moment, Clark > notes, the carrying capacity of fiber is doubling every 12 months. and > Once cost drops to $100,000 a node, the technology will make sense > for metropolitan and regional networks, starting with service > to large businesses. Basically, the ideas presented in this article refute Prof. Shamos's misleading claims that "Available bandwidth has been increasing ... at a rate of 5-10 times that of CPU processor speeds." In fact, the bandwith increases attributed to fiber optic technologies, according to these articles, are coming **just fast enough to keep up with the advances in bandwidth utilization*** resulting in no net gain in speed. The advances are not nearly as rapid as claimed, and more importantly have nothing to do with the bandwidth of "the last mile" that consumers ever see. Until everybody decides to put a $100,000 fiber optic routing unit in their basement, we're all still stuck with 56k, rate-limited cable modems and distance-limited DSL. These, of course, are all confounded by the quality of existing in-home wiring. Your DSL or cable modem will only reach optimum expected rates with pristine wiring, absense of competing electromagnetic interference and in the case of a cable modem none of your neighbors using theirs. --------------- Furthermore: Prof. Shamos bought and installed a new operating system marketed as a server OS, not a consumer OS. I understand that consumers are discouraged from purchasing W2k (someone have support for this?) and wait for WinME. If this is required to make DivXs, it is another barrier to harm. I am sure the installed consumer base of W2k is miniscule. How big was The Matrix? The size was conveniently left off. Does it fit on a CD? Was it from a DVD? Can they prove it? They may have just documented the first pirated DVD ever: Sleepless in Seattle! Was 640Kb/s the actual speed or the advertised theoretical speed (was he getting better than advertised rates due to minimal competition from other network nodes?) His estimates in 23 are generous and now are talking about pirate DivXs, not decrypted DVDs, which can be made from any source and which isn't in itself illegal. This is another layer of abstraction and the defendant's implication in these exceedingly intricate and particular claims of potential harm should be nonexistant. The defendant provides links to places to download software that makes it possible to decrypt video and audio, filling up a hard drive on a computer installed with a brand new business-oriented operating system where the user must then "have a degree of video expertise" in order to reassemble the pieces and further compress them reducing their watchability and send them for six hours from a computer with significant bandwidth to another computer with significant bandwidth found on underground, unadvertised communications channels like IRC and equipped with a playback mechanism for a brand new file format of which the public has little awareness? This is their evidence of harm? The defendant is related to this supposed harm? Quite a reach. I would ask that they please quantify the cable modem networks that provide sustained 10Mb connections to the internet. Standards for 10Gig ethernet are irrelavent. 1 gig already exists, and all of the ethernet standards are limited as specified in my declaration: you're so close to your network neighbor, just hand them the disc.... if you can even afford the technology. Note how 27 and 28 are separated: knowledgeable internet users can decrypt DVDs and store them, but it takes someone with internet AND video knowledge to make a DivX. Of course, would a person with video knowledge WATCH much less make DivXs? Yuk! And then there is the requirement of installing a DivX player. How many DivX players have ever been downloaded? 10? 100? Not particularly threatening if you ask me. I will evaluate some of the claims in depth shortly, I have to go to the Taste of Minnesota now. Night. Chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 2 23:43:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA03953 for dvd-discuss-outgoing; Sun, 2 Jul 2000 23:43:24 -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 XAA03950 for ; Sun, 2 Jul 2000 23:43:23 -0400 From: wendy@seltzer.com Message-Id: <200007030343.XAA03950@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 NJ4VB4ZF; Sun, 2 Jul 2000 23:46:52 -0400 Subject: Re: [dvd-discuss] Declaration of Michael Shamos To: dvd-discuss@eon.law.harvard.edu Content-type: text/plain; charset="iso-8859-1" Mime-version: 1.0 Date: Sun, 2 Jul 2000 23:46 -0400 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id XAA03951 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:50 AM 7/1/00 -0400, John Young wrote: >We offer the declaration for MPAA by Michael Shamos, professor >of computer science at Carnegie Mellon and an intellectual property >lawyer: > > http://cryptome.org/mpaa-v-2600-dms.htm > >He declares his findings and opinions on several experiments using >DeCSS on DVDs and DivXes. The responses people have been posting look very helpful. What questions would you want to ask Shamos at a deposition or cross-examination? I know I'm curious as to how long the whole process took him _and his assistants_ (especially once we include the Vaio purchase and the install of Win2k in that figure). How much did it cost him to get that "free copy" of The Matrix? Would anyone be willing to compile the critiques and questions, even in a bulleted list? Again I pass along the defense team's appreciation. Thanks! --Wendy (escaping the law firm for the July 4 holiday :-) Wendy Seltzer -- wendy@seltzer.com Fellow, Berkman Center for Internet & Society at Harvard Law School http://cyber.law.harvard.edu/seltzer.html Openlaw/DVD: http://eon.law.harvard.edu/openlaw/DVD/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 01:54:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA05946 for dvd-discuss-outgoing; Mon, 3 Jul 2000 01:54:48 -0400 Received: from swan.prod.itd.earthlink.net (swan.prod.itd.earthlink.net [207.217.120.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA05943 for ; Mon, 3 Jul 2000 01:54:47 -0400 Received: from hoth (user-2inib2f.dsl.mindspring.com [165.121.44.79]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA23606 for ; Sun, 2 Jul 2000 22:57:30 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] EFF files DMCA comment saying CSS != "access" c ontrol Date: Sun, 2 Jul 2000 22:57:21 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal In-reply-to: <20000702111944.J9454@zork.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The original discussion was about capacity. Of course there are concessions the Forum has made, at the behest of Hollywood, such as support of CPRM and development of DVD-R/general with a pre-embossed control area so that keys can't be written. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Seth David Schoen Sent: Sunday, July 02, 2000 11:20 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF files DMCA comment saying CSS != "access" c ontrol Jim Taylor writes: > Sorry, the conclusion is as false as the premise. The DVD Forum does not > control the production of blank media with an eye to limiting piracy. If So why do we have the concept of "consumer blanks" with the space licensed players expect keys already recorded? Where does that practice originate, if not with the DVD Forum? -- 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 Jul 3 02:15:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA06197 for dvd-discuss-outgoing; Mon, 3 Jul 2000 02:15:38 -0400 Received: from dial146.roadrunner.com (dial146.cybermesa.com [209.12.75.146] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA06194 for ; Mon, 3 Jul 2000 02:15:32 -0400 Received: (from paul@localhost) by dial146.roadrunner.com (8.8.7/8.8.7) id AAA00778 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 00:18:48 -0600 Date: Mon, 3 Jul 2000 00:18:46 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703001845.A581@localhost> References: <200007030343.XAA03950@eon.law.harvard.edu> 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: <200007030343.XAA03950@eon.law.harvard.edu>; from wendy@seltzer.com on Sun, Jul 02, 2000 at 11:46:00PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 02, 2000 at 11:46:00PM -0400, wendy@seltzer.com wrote: > At 07:50 AM 7/1/00 -0400, John Young wrote: > >We offer the declaration for MPAA by Michael Shamos, professor > >of computer science at Carnegie Mellon and an intellectual property > >lawyer: > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > > >He declares his findings and opinions on several experiments using > >DeCSS on DVDs and DivXes. > > The responses people have been posting look very helpful. What questions > would you want to ask Shamos at a deposition or cross-examination? I know > I'm curious as to how long the whole process took him _and his assistants_ > (especially once we include the Vaio purchase and the install of Win2k in > that figure). How much did it cost him to get that "free copy" of The > Matrix? > > Would anyone be willing to compile the critiques and questions, even in a > bulleted list? Again I pass along the defense team's appreciation. 6. All of the activities described herein were performed by me personally or Carnegie Mellon staff members acting at my direction and supervision. 1. How many people? 2. How much time? 11. We inserted the "Sleepless in Seattle" DVD into the DVD drive of the Sony computer and ran the program. This resulted in multiple .VOB files comprising decrypted video of the movie. We then removed the DVD from the DVD drive and were able to view the movie using the standard Windows Media player without further processing. This demonstrates that the DeCSS program successfully decrypted the DVD and copied it to the Sony hard drive. 3. What constitutes successful? 3.a. Loss of sound track? 3.b. Loss of navigation features? 12. Windows 98 imposes a limit on the length of disk files. Because decrypted DVD files are very large (greater than 5 gigabytes) we decided to do further experiments using Windows 2000 to remove the size restriction. 4. What fraction of systems shipped in the last (pick a time frame) can store files longer than 5 GiB? 14. We repeated all of the above steps and ran DeCSS again. It located 10 files on the DVD, five of which had the extension .VOB. We clicked the button on the DeCSS window labeled "Merge VOB files." This resulted in a single large .VOB file. We successfully played this file using Media Player to view "Sleepless in Seattle" (in this case with one of the alternate sound tracks) without the DVD inserted in the drive. 5. How was it determined that the file was successfully played? Did the play-times match exactly? 15. We converted the .VOB file to DivX, a highly compressed video format designed so that a DVD movie can be stored on a single CD-ROM having capacity limited to 650 megabytes. 6. Quantify "compressed". What is the loss in image quality? 16. We followed these steps: a. We loaded the program mIRC, visited #divx by typing /join #divx. The #divx channel topic was "visit our home page at http://fm4.org." We did so. b. The page has a "Tutorial" section and a "Guide to Fixing Desynch." We downloaded all required programs as specified on the page. c. We followed all specified instructions to the letter. 7. Is the "[t]utorial" page Shamos mentions , or another document? 8. Is the "Guide ..." , or another document? 9. Are "all required programs" the pair: md5sum: md5sum: or not? 17. For the DeCSSed movie "Sleepless in Seattle" this procedure produced a badly desynchronized DivX file, in which the audio was not properly timed to the video. However, the #divx site contains instructions for repairing the problem. 10. This is goobeldiegook. "#divx" is an irc channel not a web site. a. How do the instructions contained in "the #divx site" differ from the instructions mentioned in Shamos declaration ¶16? b. What on this Good Green Earth Are You Talking About? Declaration are not supposed to be 20-questions or pantomime. 18. We removed the opening trailer of the film to assist in the synchronization process and performed the fixes as described in the "Guide to Fixing Desynch." 11. "[R]emoved the opening trailer ... to assist in the sync[] process ..." Does use of the work "assist" mean that other material was elided from the movie? 19. The result of this process was a successfully synchronized copy of a DivX for the film "Sleepless in Seattle" (in this case with the standard default soundtrack). 12. Too bad we don't know what "this process" refers to. 21. We thus obtained a free copy of the DivX for the film "The Matrix" by trading a copy of "Sleepless in Seattle." Using basic cable modem service (approximately 640 kilobits per second), it took about 6 hours to download the DivX. The quality of the video was substantially better than VHS tape but not quite as good as a DVD. 13. Quantify or specify how you decided that VHS is lower quality. a. Did you watch the same movie on both "DivX" and VHS? b. Because image quality can easily be dominated by the display device, what was the display device? Was the display device the same when you watched both the DivX and VHS versions? c. If you only watch VHS on NTSC TV screen, it doesn't matter what the quality of the data is, the image quality is *utterly* dominated by the abominable NTSC display device. To test VHS you have to run it through a frame grabber and show it on a high quality display. Otherwise the comparision is grossly unfair. d. How big was the file? 22. We then conducted further experiments to determine how long it would take to share the DivX of "The Matrix" with others. Using a 10 megabit LAN, the file transfer took less than 20 minutes. Using a 100 megabit LAN available at Carnegie Mellon, the transfer of the compressed DivX of "The Matrix" was accomplished in three minutes. 14. File size? a. "traceroute" output? b. network config.? c. time of day and date? 23. There are over 1 million Internet hosts in the .EDU domain, indicating educational institutions. Most large universities maintain 10 megabit LANs. It is therefore my conservative estimate that at least one million university students and faculty around the world presently have the capability to transfer and share DivX files of feature-length movies in less than 20 minutes. Home cable modems are widely available that support transmission at up to 10 megabits per second. 15. No data, or uncited data ("conservative estimate" -> no data, "1 million hosts" -> uncited data). a. "20 minutes" if they have the wire to themselves. You just said there are a million of them. Please add as you see fit... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 02:34:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA06394 for dvd-discuss-outgoing; Mon, 3 Jul 2000 02:34:57 -0400 Received: from dial172.roadrunner.com (dial172.cybermesa.com [209.12.75.172] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA06391 for ; Mon, 3 Jul 2000 02:34:55 -0400 Received: (from paul@localhost) by dial172.roadrunner.com (8.8.7/8.8.7) id AAA00943 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 00:38:16 -0600 Date: Mon, 3 Jul 2000 00:38:14 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703003813.A924@localhost> References: <200007030343.XAA03950@eon.law.harvard.edu> <20000703001845.A581@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000703001845.A581@localhost>; from fenimore@roadrunner.com on Mon, Jul 03, 2000 at 12:18:46AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 12:18:46AM -0600, Paul Fenimore wrote: [ ... ] > 9. Are "all required programs" the pair: > > md5sum: > > md5sum: > or not? 75ee755696f037ba8e2f9b8b607459f1 /tmp/VirtualDub.zip 734ace1951cc00b729b2567e8a2ab284 /tmp/avifrate101.zip Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 02:49:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA06553 for dvd-discuss-outgoing; Mon, 3 Jul 2000 02:49:24 -0400 Received: from dial172.roadrunner.com (dial172.cybermesa.com [209.12.75.172] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA06550 for ; Mon, 3 Jul 2000 02:49:21 -0400 Received: (from paul@localhost) by dial172.roadrunner.com (8.8.7/8.8.7) id AAA00956 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 00:52:38 -0600 Date: Mon, 3 Jul 2000 00:52:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Decl' Shamos, n.5 Message-ID: <20000703005235.A840@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200007011158.HAA28856@granger.mail.mindspring.net>; from jya@pipeline.com on Sat, Jul 01, 2000 at 07:50:55AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 01, 2000 at 07:50:55AM -0400, John Young wrote: > We offer the declaration for MPAA by Michael Shamos, professor > of computer science at Carnegie Mellon and an intellectual property > lawyer: > > http://cryptome.org/mpaa-v-2600-dms.htm CMU makes their traffic statistics available on the web: Those stats are relevant to: 5. At all material times the Sony Computer was connected to a local area network at Carnegie Mellon University, through which Internet access was obtained. Except where noted herein, the bandwidth of the CMU network is 10 megabits per second. This network extends to faculty and student offices and dormitory rooms. It looks like dorm up-link runs most of the day with a significant part (1/3 to 1/2) of their 10 Mib/s chewed up by other use. A few hours near dawn seems to find a lull in network usage. Even CMU CS students sleep once in a while. NOTE: this is not a detailed analysis, and I don't represent it as such. The url is there for everyone. Now I too need my sleep. Network architecture and lots of other goodies: and Under Construction Our current campus backbone is divided into two parts: the routed section, and the non-routed section. Routed Portion The routed portion of our campus network consists of the student dorms, the campus computer Operations room, and other assorted testing networks. Cisco 7507 routers form the backbone of this portion of the network. Operations is connected via a Cisco 6509 switch with a fiber uplink to the backbone using gigabit ethernet. Non-routed Portion The majority of connected users in academic buildings are connected via Cisco switches and 7500 series routers. For more information, check out this white paper. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 03:03:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA06780 for dvd-discuss-outgoing; Mon, 3 Jul 2000 03:03:00 -0400 Received: from swan.prod.itd.earthlink.net (swan.prod.itd.earthlink.net [207.217.120.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA06777 for ; Mon, 3 Jul 2000 03:02:59 -0400 Received: from hoth (user-2inib2f.dsl.mindspring.com [165.121.44.79]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id AAA10171 for ; Mon, 3 Jul 2000 00:05:43 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Declaration of Michael Shamos Date: Mon, 3 Jul 2000 00:05:33 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal In-reply-to: <20000703001845.A581@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A few comments on Paul's suggestions... Paul Fenimore wrote on Sunday, July 02, 2000 11:19 PM > > 6. All of the activities described herein were performed by me > personally or Carnegie Mellon staff members acting at my direction and > supervision. > >1. How many people? >2. How much time? Yes, the point being that the time and effort to copy a DVD is such that it's not worth it for the average customer - especially if it takes extra work to recover additional features such as menus, navigation, alternate audio, and subtitles. > 11. We inserted the "Sleepless in Seattle" DVD into the DVD drive of > the Sony computer and ran the program. This resulted in multiple .VOB > files comprising decrypted video of the movie. We then removed the DVD > from the DVD drive and were able to view the movie using the standard > Windows Media player without further processing. This demonstrates > that the DeCSS program successfully decrypted the DVD and copied it to > the Sony hard drive. > >3. What constitutes successful? > 3.a. Loss of sound track? > 3.b. Loss of navigation features? The standard Windows Media Player has no DVD user interface, therefore the only thing possible would be to view chunks of the movie with the default audio track. Not an optimal movie viewing experience. > 12. Windows 98 imposes a limit on the length of disk files. Because > decrypted DVD files are very large (greater than 5 gigabytes) we > decided to do further experiments using Windows 2000 to remove the > size restriction. > >4. What fraction of systems shipped in the last (pick a time frame) >can store files longer than 5 GiB? For now this is relevant. Even the new Windows Me OS, aimed at home entertainment market, has the same FAT32 limitations as Windows 98. But in the future, when 100 GB hard drives run under Whistler personal version, it will be simple to keep a DVD-9's worth of data intact in a single file. > 14. We repeated all of the above steps and ran DeCSS again. It located > 10 files on the DVD, five of which had the extension .VOB. We clicked > the button on the DeCSS window labeled "Merge VOB files." This > resulted in a single large .VOB file. We successfully played this file > using Media Player to view "Sleepless in Seattle" (in this case with > one of the alternate sound tracks) without the DVD inserted in the > drive. > >5. How was it determined that the file was successfully played? Did the >play-times match exactly? I don't see how this is germane. We know DeCSS works and makes a playable copy. Seems like a pointless line of questioning. I question the "(in this case with one of the alternate sound tracks)" line, since I don't know of any way in WMP to select an alternate sound track (not without using an HTML-based custom playback UI). I think he confused this with later DivXed versions. > 15. We converted the .VOB file to DivX, a highly compressed video > format designed so that a DVD movie can be stored on a single CD-ROM > having capacity limited to 650 megabytes. > >6. Quantify "compressed". What is the loss in image quality? Good question. Assuming Sleepless in Seattle is a bit over 5 gig, that's at least an 8:1 compression, resulting in a data rate somewhere around 600 Kbps. Not terrible, but still not VHS quality. >7. Is the "[t]utorial" page Shamos mentions , or >another document?>8. Is the "Guide ..." , or another >document? >9. Are "all required programs" the pair: > >md5sum: > >md5sum: >or not? Is this relevant? > 17. For the DeCSSed movie "Sleepless in Seattle" this procedure > produced a badly desynchronized DivX file, in which the audio was not > properly timed to the video. However, the #divx site contains > instructions for repairing the problem. > >10. This is goobeldiegook. "#divx" is an irc channel not a web site. > a. How do the instructions contained in "the #divx site" differ from the > instructions mentioned in Shamos declaration ¶16? > b. What on this Good Green Earth Are You Talking About? Declaration are > not supposed to be 20-questions or pantomime. Ok, could be good to cast doubt on competence of Mr. Shamos. > 19. The result of this process was a successfully synchronized copy of > a DivX for the film "Sleepless in Seattle" (in this case with the > standard default soundtrack). > >12. Too bad we don't know what "this process" refers to. It's possible to create a DivX version, so details of the process aren't all that relevant. > 21. We thus obtained a free copy of the DivX for the film "The Matrix" > by trading a copy of "Sleepless in Seattle." Using basic cable modem > service (approximately 640 kilobits per second), it took about 6 hours > to download the DivX. The quality of the video was substantially > better than VHS tape but not quite as good as a DVD. > >13. Quantify or specify how you decided that VHS is lower quality. > a. Did you watch the same movie on both "DivX" and VHS? > b. Because image quality can easily be dominated by the display device, > what was the display device? Was the display device the same when you > watched both the DivX and VHS versions? > c. If you only watch VHS on NTSC TV screen, it doesn't matter what > the quality of the data is, the image quality is *utterly* dominated > by the abominable NTSC display device. To test VHS you have to run it > through a frame grabber and show it on a high quality display. Otherwise > the comparision is grossly unfair. The fundamental question is, was the video good enough to satisfy someone who would otherwise buy the DVD? The answer (in my opinion) is that most DVD buyers care about quality and would not be satisfied with a crummy DivX version. If they are, then a video grab of a VHS tape would be just as good. > d. How big was the file? Good question. If it took 6 hours at 640 Kbps, it must have been much bigger than a CD. (1.7 MB?) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 04:37:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA07660 for dvd-discuss-outgoing; Mon, 3 Jul 2000 04:37:40 -0400 Received: from dial76.roadrunner.com (sf-du76.cybermesa.com [209.12.75.76]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA07657 for ; Mon, 3 Jul 2000 04:37:35 -0400 Received: (from paul@localhost) by dial76.roadrunner.com (8.8.7/8.8.7) id CAA01619 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 02:40:56 -0600 Date: Mon, 3 Jul 2000 02:40:55 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] June 27th hearing, p.35 Message-ID: <20000703024054.A1535@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 p. 35: THE COURT: 3 copyrighted works which the defendants conceded already in 4 this case and that the DECS circumvents CSS and has little or 5 no other purpose. At least part of that appears to be The defendants never conceded that DeCSS circumvents CSS. In the Jan. 20th hearing Gross conceeded the DeCSS *"descrambles"* a work. The judge mis-heard or mis-understood, and apparently that misconception has stuck. There is a world of difference between circumvention and descrambling. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 08:01:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA09092 for dvd-discuss-outgoing; Mon, 3 Jul 2000 08:01:31 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA09089 for ; Mon, 3 Jul 2000 08:01:29 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id HAA27469 for ; Mon, 3 Jul 2000 07:03:54 -0500 Message-ID: <3960829F.DB6C31D@mninter.net> Date: Mon, 03 Jul 2000 07:10:07 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.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 1. How much money was spent to perform the acts in this declaration? (note: laptop is advertised on Sony.com for 3299.99) 2. How much time (in person-hours) was spent performing the acts in this declaration? 2a. How much of that time was spent searching for information, files or anonymous IRC traders? 2b. How much of that time was spent actually creating the DivX? 3. How many pages of reading were necessary to perform the acts in this declaration, including reading that may have been done before this declaration was concieved of and prepared? 4. Is DeCSS a necessary step in performing the acts in this declaraion? 5. Could some other software have been substitiuted for DeCSS? 6. Could some other combination of software and hardware have been substituted for DeCSS? 7. Was installing Windows 2000 a necessary step? 7a. Will the MPAA sue Microsoft about their role in aiding piracy (my own curiosity)? 8. What was the file size of the Sleepless In Seattle DivX? Of the Matrix DivX? 9. What was the maximum transfer rate achieved while recieving The Matrix? Average? 10. What is the advertised maximum transfer rate of the cable modem service used in this declaration? Average? 11. Explain any discrepancy between 9 and 10. (see: http://www.home.com/speed/ "The result is a faster, more reliable Internet experience for your home, with upstream data transfer speeds of 128Kbps and downstream speed up to 100 times faster than a 28.8Kbps modem.") 12. Do internet users, regardless of connection method, ever obtain the maximum theoretical transfer rate? Why not? 13. Is the descrepancy typical for a cable modem user? 14. What time was the file transfer performed? 15. How many people have cable modem access in the neighborhood as the testing location, and are connected to the same headend? 16. What are the Terms of Service for the cable modem provider? For all internet services used in this declaration? 17. Were the Terms of Service violated to perform the acts specified in the declaration? (http://www.home.com/qa.html#server "Can I attach a server to your network? No." see also: http://www.home.com/support/aup/) 18. Might the declarant or anonymous party have put their internet access at risk with the provider by performing the acts in the declaration? 19. Was the Matrix sent to/recieved by 128.2.179.23? 20. Where is that? Is that computer's internet access provided by a cable modem? (no) 21. Was the DivX of The Matrix absolutely from a DVD? What evidence leads to that conclusion? 22. Was the DivX of The Matrix absolutely made with DeCSS? Could it have been made any other way? 23. What was the quality of the audio of The Matrix DivX? 24. Did anonymous have a legitimate copy of Sleepless in Seattle? 25. Does the declarant have a legitimate copy of The Matrix? 26. How much would the declarant pay for the DivX copy of The Matrix that he downloaded, if sold in a store? Does it have any value? Why or why not? 27. Would the declarant, in the normal course of business, sooner perform the acts in the declaraion to obtain a movie, or purchase a DVD? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 08:51:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA09348 for dvd-discuss-outgoing; Mon, 3 Jul 2000 08:51:29 -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 IAA09345 for ; Mon, 3 Jul 2000 08:51:28 -0400 Received: from travel-net.com (trj17.travel-net.com [207.176.160.17]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id HAA05930 for ; Mon, 3 Jul 2000 07:51:32 -0400 Message-ID: <39608CF3.10C620F9@travel-net.com> Date: Mon, 03 Jul 2000 08:54:11 -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] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.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 Of all of these questions, #4-5 should be at the top of the list. After that, the rest is history (but why not find out while we have the chance ). Chris Moseng wrote: > > 1. How much money was spent to perform the acts in this declaration? > (note: laptop is advertised on Sony.com for 3299.99) > > 2. How much time (in person-hours) was spent performing the acts in this > declaration? > > 2a. How much of that time was spent searching for information, files or > anonymous IRC traders? > > 2b. How much of that time was spent actually creating the DivX? > > 3. How many pages of reading were necessary to perform the acts in this > declaration, including reading that may have been done before this > declaration was concieved of and prepared? > > 4. Is DeCSS a necessary step in performing the acts in this declaraion? > > 5. Could some other software have been substitiuted for DeCSS? > > 6. Could some other combination of software and hardware have been > substituted for DeCSS? > > 7. Was installing Windows 2000 a necessary step? > > 7a. Will the MPAA sue Microsoft about their role in aiding piracy (my > own curiosity)? > > 8. What was the file size of the Sleepless In Seattle DivX? Of the > Matrix DivX? > > 9. What was the maximum transfer rate achieved while recieving The > Matrix? Average? > > 10. What is the advertised maximum transfer rate of the cable modem > service used in this declaration? Average? > > 11. Explain any discrepancy between 9 and 10. > (see: http://www.home.com/speed/ "The result is a faster, more reliable > Internet experience for your home, with upstream data transfer speeds of > 128Kbps and downstream speed up to 100 times faster than a 28.8Kbps > modem.") > > 12. Do internet users, regardless of connection method, ever obtain the > maximum theoretical transfer rate? Why not? > > 13. Is the descrepancy typical for a cable modem user? > > 14. What time was the file transfer performed? > > 15. How many people have cable modem access in the neighborhood as the > testing location, and are connected to the same headend? > > 16. What are the Terms of Service for the cable modem provider? For all > internet services used in this declaration? > > 17. Were the Terms of Service violated to perform the acts specified in > the declaration? (http://www.home.com/qa.html#server "Can I attach a > server to your network? No." see also: http://www.home.com/support/aup/) > > 18. Might the declarant or anonymous party have put their internet > access at risk with the provider by performing the acts in the > declaration? > > 19. Was the Matrix sent to/recieved by 128.2.179.23? > > 20. Where is that? Is that computer's internet access provided by a > cable modem? (no) > > 21. Was the DivX of The Matrix absolutely from a DVD? What evidence > leads to that conclusion? > > 22. Was the DivX of The Matrix absolutely made with DeCSS? Could it have > been made any other way? > > 23. What was the quality of the audio of The Matrix DivX? > > 24. Did anonymous have a legitimate copy of Sleepless in Seattle? > > 25. Does the declarant have a legitimate copy of The Matrix? > > 26. How much would the declarant pay for the DivX copy of The Matrix > that he downloaded, if sold in a store? Does it have any value? Why or > why not? > > 27. Would the declarant, in the normal course of business, sooner > perform the acts in the declaraion to obtain a movie, or purchase a DVD? > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- 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 Jul 3 09:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA09651 for dvd-discuss-outgoing; Mon, 3 Jul 2000 09:28:14 -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 JAA09648 for ; Mon, 3 Jul 2000 09:28:13 -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:2.21) with ESMTP id JAA12290 for ; Mon, 3 Jul 2000 09:30:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA13471; Mon, 3 Jul 2000 09:30:58 -0400 (EDT) Date: Mon, 3 Jul 2000 09:30:58 -0400 (EDT) Message-Id: <200007031330.JAA13471@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] here is an idea for a defense In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1C99@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1C99@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > This has been brought up before, there is an old > thread where this was discussed. If I remember the > results it all depended upon whether the term "effectively" > in legal-ese means "in effect" or "well". With the former > interpretation something as simple as a "do not copy > this" single-bit flag could "effectively" protect the target. > It was decided that we didn't want to try to pursue this > line because of the ambiguity there. Well, if it makes a difference what Congress thought it meant, then we have a potentially useful answer. From Rep Bliley in the debate on the first House vote: Section 2101(a)(3) [sic] of H.R. 2281 defines certain terms used throughout Section 1201(a). As we made clear in our report, the measures that would be deemed to ``effectively control access to a work'' would be those based on encryption, scrambling, authentication, or some other measure which requires the use of a ``key'' provided by a copyright owner to gain access to a work. N.B. Bliley was speaking as the chair of the House Judiciary committee, which did a rewrite on the Senate draft of 1201 which was largely adopted by the Conference Committee, so it was his committee which wrote the language we are trying to interpret; his point is repeated by other committee members in the debate --- see, for instance, Rep. Stearns' remarks in the final debate on the Conference committee report. So, the question becomes whether a one-bit flag embedded in the data stream itself can be meaningfully considered as an access control key. Whitfield Diffie (coinventor of public key cryptography) and Susan Landau (now of Sun Microsystems) explain the role of keys as follows, in their book Privacy on the Line: We shall describe cryptography for the moment only by what it does: a transformation of a message that makes the message incomprehensible to anyone who is not in posession of secret information that is needed to restore the message to its normal *plaintext* or *cleartext* form. The secret information is called the *key*, and its function is very similar to the function of a door key in a lock: it unlocks the message so that the recipient can read it. It follows from this definition that the key has to be separate from the work --- if anyone in possession of the work has the "key" as well, then the "key" isn't actually doing anything to govern access. A one bit flag embedded in the data stream obviously isn't a key by this definition. More interestingly, neither are the various "keys" on a CSS-formatted DVD. Which reinforces an argument that has come up here from time to time, that CSS isn't meaningful cryptography, but rather, an assembly of cryptographic gears and wheels (LFSRs and the like) without any real cryptographic purpose. More argument along these lines is in my long legislative history screed from a few months ago. Of course, if this argument all goes, then the court erred in Streambox... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 12:26:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10818 for dvd-discuss-outgoing; Mon, 3 Jul 2000 12:26:07 -0400 Received: from dial208.roadrunner.com (dial208.cybermesa.com [209.12.75.208] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10815 for ; Mon, 3 Jul 2000 12:26:04 -0400 Received: (from paul@localhost) by dial208.roadrunner.com (8.8.7/8.8.7) id KAA00630 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 10:29:22 -0600 Date: Mon, 3 Jul 2000 10:29:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Message-ID: <20000703102921.A520@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1C99@mail2.onetouch.com> <200007031330.JAA13471@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: <200007031330.JAA13471@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Jul 03, 2000 at 09:30:58AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 09:30:58AM -0400, Robert S. Thau wrote: [ ... ] > Of course, if this argument all goes, then the court erred in > Streambox... As you told me several months ago, 1201(a)(3) and (b)(2) differ in their wording. So even if the Court did not err in Streambox (a view that I think has significant problems), that was a (b) case, so that Court's analysis is less important than it might be otherwise. 1201(a)(3)(B) uses the word "requires", which would seem to rule out a one-bit flag as opposed to crypto. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 12:38:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10956 for dvd-discuss-outgoing; Mon, 3 Jul 2000 12:38:27 -0400 Received: from dial186.roadrunner.com (sf-du186.cybermesa.com [209.12.75.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10953 for ; Mon, 3 Jul 2000 12:38:24 -0400 Received: (from paul@localhost) by dial186.roadrunner.com (8.8.7/8.8.7) id KAA00924 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 10:41:46 -0600 Date: Mon, 3 Jul 2000 10:41:45 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Sega's Dreamcast game console Message-ID: <20000703104144.A801@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 By John Borland Staff Writer, CNET News.com June 30, 2000, 12:55 p.m. PT A group of underground computer programmers has broken through copyright protections on Sega's Dreamcast game console, sparking a new explosion of pirated game software online in just a week's time. The Dreamcast game system has been viewed as one of the most secure digital entertainment systems on the market, with internal copy protection and a CD that holds nearly twice as much data as an ordinary disc. [ ... ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 12:47:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11062 for dvd-discuss-outgoing; Mon, 3 Jul 2000 12:47:05 -0400 Received: from dial186.roadrunner.com (sf-du186.cybermesa.com [209.12.75.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11059 for ; Mon, 3 Jul 2000 12:47:03 -0400 Received: (from paul@localhost) by dial186.roadrunner.com (8.8.7/8.8.7) id KAA00941 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 10:50:26 -0600 Date: Mon, 3 Jul 2000 10:50:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703105024.A929@localhost> References: <20000703001845.A581@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Mon, Jul 03, 2000 at 12:05:33AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 12:05:33AM -0700, Jim Taylor wrote: > A few comments on Paul's suggestions... > Paul Fenimore wrote on Sunday, July 02, 2000 11:19 PM [ ... ] > >7. Is the "[t]utorial" page Shamos mentions , or > >another document?>8. Is the "Guide ..." > , or another > >document? > >9. Are "all required programs" the pair: > > > >md5sum: > > > >md5sum: > >or not? > Is this relevant? Knowing what procedure was followed, what was necessary to sync the video and audio, may be relevant to whether or not the procedure could be automated, or if there will always be a need for human intervention to sync video and audio. I expect human intervention is necessary. > > 17. For the DeCSSed movie "Sleepless in Seattle" this procedure > > produced a badly desynchronized DivX file, in which the audio was not > > properly timed to the video. However, the #divx site contains > > instructions for repairing the problem. > > > >10. This is goobeldiegook. "#divx" is an irc channel not a web site. > > a. How do the instructions contained in "the #divx site" differ from the > > instructions mentioned in Shamos declaration ¶16? > > b. What on this Good Green Earth Are You Talking About? Declaration are > > not supposed to be 20-questions or pantomime. > Ok, could be good to cast doubt on competence of Mr. Shamos. I'm complaining that he has not properly inserted references in his declaration. Exactly which instructions did he and his assistants follow? Right now, no one can replicate the process he followed, even one can reproduce the result. > > 19. The result of this process was a successfully synchronized copy of > > a DivX for the film "Sleepless in Seattle" (in this case with the > > standard default soundtrack). > > > >12. Too bad we don't know what "this process" refers to. > It's possible to create a DivX version, so details of the process aren't all > that relevant. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 12:59:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11145 for dvd-discuss-outgoing; Mon, 3 Jul 2000 12:59:06 -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 MAA11142 for ; Mon, 3 Jul 2000 12:59:05 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id A23BE99C84; Mon, 3 Jul 2000 10:01:49 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 95495938C1 for ; Mon, 3 Jul 2000 10:01:49 -0700 (PDT) Date: Mon, 3 Jul 2000 10:01:49 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 3 Jul 2000, Jim Taylor wrote: > The fundamental question is, was the video good enough to satisfy someone > who would otherwise buy the DVD? The answer (in my opinion) is that most DVD > buyers care about quality and would not be satisfied with a crummy DivX > version. If they are, then a video grab of a VHS tape would be just as good. And then the question becomes "how was the video in comparison to other methods?" Even if buyers *don't* care about quality, that doesn't mean that DeCSS adds anything new. They can already make a low-quality copy by methods ranging from ripper programs to pointing a camcorder at the screen and digitizing it. So if low quality copies are acceptable, what difference is there between DeCSS and the methods that already existed even without it? I think this is where they're trying to fool the judge. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 13:03:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11322 for dvd-discuss-outgoing; Mon, 3 Jul 2000 13:03:17 -0400 Received: from dial186.roadrunner.com (sf-du186.cybermesa.com [209.12.75.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA11319 for ; Mon, 3 Jul 2000 13:03:13 -0400 Received: (from paul@localhost) by dial186.roadrunner.com (8.8.7/8.8.7) id LAA00953 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 11:06:35 -0600 Date: Mon, 3 Jul 2000 11:06:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703110635.B929@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39608CF3.10C620F9@travel-net.com>; from dstein@travel-net.com on Mon, Jul 03, 2000 at 08:54:11AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 08:54:11AM -0400, Dan Steinberg wrote: > Of all of these questions, #4-5 should be at the top of the list. > After that, the rest is history (but why not find out while we have > the chance ). > > > > Chris Moseng wrote: > > > > 1. How much money was spent to perform the acts in this declaration? > > (note: laptop is advertised on Sony.com for 3299.99) We should distinguish between one-time or infrequent costs, and costs of operation. > > 2. How much time (in person-hours) was spent performing the acts in this > > declaration? > > > > 2a. How much of that time was spent searching for information, files or > > anonymous IRC traders? > > > > 2b. How much of that time was spent actually creating the DivX? 2c. What are the qualifications (experience, education) of Shamos' assistants? Are they computer or network professionals? > > 3. How many pages of reading were necessary to perform the acts in this > > declaration, including reading that may have been done before this > > declaration was concieved of and prepared? 3a. What were those pages that Shamos and his assistants read? > > 4. Is DeCSS a necessary step in performing the acts in this declaraion? 4a. DoD Speed ripper could do this too, yes or no? 4b. DeCSS has two "functions", (i) descrambling and (ii) transfer of a copy to a new medium. Do you object to DeCSS's function of decryption? 4c. How do you distinguish the *function* of descrambling as performed by DeCSS from the *function* of descrambling performed by the Xing player? 4d. Is it possible to play a CSS'ed movie without descrambling? [Yes, I know this looks redundant with 4e, but it isn't. The P's make the claim that "you can't plug all the holes". This is why it is so important to distinguish access control from rights/copy control. Access isn't a hole to be plugged. If they did that, there would be no movie to watch.] 4e. Is it _necessary_ to descramble a CSS'ed movie to watch it? 4f. If the P's object to coupling (i) and (ii) above, why is this a 1201(a)(2) suit, and not a 1201(b)(1) suit? > > 5. Could some other software have been substitiuted for DeCSS? > > > > 6. Could some other combination of software and hardware have been > > substituted for DeCSS? > > > > 7. Was installing Windows 2000 a necessary step? > > > > 7a. Will the MPAA sue Microsoft about their role in aiding piracy (my > > own curiosity)? > > > > 8. What was the file size of the Sleepless In Seattle DivX? Of the > > Matrix DivX? > > > > 9. What was the maximum transfer rate achieved while recieving The > > Matrix? Average? > > > > 10. What is the advertised maximum transfer rate of the cable modem > > service used in this declaration? Average? > > > > 11. Explain any discrepancy between 9 and 10. > > (see: http://www.home.com/speed/ "The result is a faster, more reliable > > Internet experience for your home, with upstream data transfer speeds of > > 128Kbps and downstream speed up to 100 times faster than a 28.8Kbps > > modem.") > > > > 12. Do internet users, regardless of connection method, ever obtain the > > maximum theoretical transfer rate? Why not? 12a. How does the very large number of University students and faculty affect the available bandwidth per person? 12b. If there a trade-off between the feasibility of transferring movies over the Internet, and the number of people to trade with? 12c. What would prevent the MPAA from monitoring IRC for the type of copying that you demonstrated? > > 13. Is the descrepancy typical for a cable modem user? > > > > 14. What time was the file transfer performed? > > > > 15. How many people have cable modem access in the neighborhood as the > > testing location, and are connected to the same headend? > > > > 16. What are the Terms of Service for the cable modem provider? For all > > internet services used in this declaration? > > > > 17. Were the Terms of Service violated to perform the acts specified in > > the declaration? (http://www.home.com/qa.html#server "Can I attach a > > server to your network? No." see also: http://www.home.com/support/aup/) > > > > 18. Might the declarant or anonymous party have put their internet > > access at risk with the provider by performing the acts in the > > declaration? > > > > 19. Was the Matrix sent to/recieved by 128.2.179.23? > > > > 20. Where is that? Is that computer's internet access provided by a > > cable modem? (no) > > > > 21. Was the DivX of The Matrix absolutely from a DVD? What evidence > > leads to that conclusion? > > > > 22. Was the DivX of The Matrix absolutely made with DeCSS? Could it have > > been made any other way? > > > > 23. What was the quality of the audio of The Matrix DivX? > > > > 24. Did anonymous have a legitimate copy of Sleepless in Seattle? > > > > 25. Does the declarant have a legitimate copy of The Matrix? > > > > 26. How much would the declarant pay for the DivX copy of The Matrix > > that he downloaded, if sold in a store? Does it have any value? Why or > > why not? > > > > 27. Would the declarant, in the normal course of business, sooner > > perform the acts in the declaraion to obtain a movie, or purchase a DVD? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 13:47:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11571 for dvd-discuss-outgoing; Mon, 3 Jul 2000 13:47:44 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA11568 for ; Mon, 3 Jul 2000 13:47:41 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA23859 for ; Mon, 3 Jul 2000 12:50:05 -0500 Message-ID: <3960D3BD.B7D5E0B1@mninter.net> Date: Mon, 03 Jul 2000 12:56:13 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.net> <395FE53E.33B16477@mninter.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 > Furthermore: Prof. Shamos bought and installed a new operating system > marketed as a server OS, not a consumer OS. I understand that consumers > are discouraged from purchasing W2k (someone have support for this?) and > wait for WinME. http://www.microsoft.com/windows2000/guide/professional/features/choosing.asp "Windows 2000 Professional operating system is designed for business users. Windows 98 remains the best choice for home users and gamers." Chris From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 14:02:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA11796 for dvd-discuss-outgoing; Mon, 3 Jul 2000 14:02:36 -0400 Received: from dial91.roadrunner.com (dial91.cybermesa.com [209.12.75.91] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA11793 for ; Mon, 3 Jul 2000 14:02:33 -0400 Received: (from paul@localhost) by dial91.roadrunner.com (8.8.7/8.8.7) id MAA01190 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 12:05:56 -0600 Date: Mon, 3 Jul 2000 12:05:54 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703120553.A1073@localhost> References: <200007030343.XAA03950@eon.law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <200007030343.XAA03950@eon.law.harvard.edu>; from wendy@seltzer.com on Sun, Jul 02, 2000 at 11:46:00PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:50 AM 7/1/00 -0400, John Young wrote: [ ... ] > http://cryptome.org/mpaa-v-2600-dms.htm [ ... ] 28. It is my opinion that a user of the Internet with a degree of video expertise can easily locate and obtain software to transform a DeCSSed DVD into compressed DivX format and run correction software to resynchronize the audio and video. 1. Can you provide a copy of the "DivX" you made? 2. A copy of the "DivX" you received? 29. It is my opinion that DivX movie files can be readily transferred and exchanged over the Internet and can be used to trade for other DivX movie files without the need to exchange any money. 3. Subject to what constraints on type of connection? 30. It is my opinion that on mid- and large-sized college campuses in the United States, anyone with access to these networks [sic], including students, can currently transmit DivX movie files within the same campus network in less than 20 minutes. 4. How many people can do this at once and maintain your 20 minute figure? 4a. If 10 out of 10,000 people on a University campus transmitted movies, what would be the transmission time? 4b. 100 out of 10,000 people? 31. Available bandwidth has been increasing in the United States at a rate of 5-10 times that of CPU processor speeds. Processors are currently doubling in speed approximately every 18 months. 5. Provide a citation for this statement or give evidence to support it. 5a. Give a definition for "available bandwidth". What is that number? Is that for the U.S.? 5b. Over what time-frame is this statement about rate-of-increase alledged to be valid? 5c. Is the rate-of-growth (the time constant) in fiber optic speeds similar to the rate-of-growth for modem speeds? Cable modem? How do they differ? 6. How has the number of Internet users grown during a comparable time-frame? 6a. How many U.S. and world-wide Internet users are there, respectively? 7. How does the bandwidth available to a "home" user grow with time? 7a. How does the bandwidth available to a "university" user grow with time? 8. What is the ratio of U.S. "available bandwidth" and the number of U.S. Internet users? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 14:33:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA12594 for dvd-discuss-outgoing; Mon, 3 Jul 2000 14:33:37 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA12591 for ; Mon, 3 Jul 2000 14:33:34 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA28301 for ; Mon, 3 Jul 2000 13:36:02 -0500 Message-ID: <3960DE74.5E013A0@mninter.net> Date: Mon, 03 Jul 2000 13:41:56 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > > 4. Is DeCSS a necessary step in performing the acts in this declaraion? > > 4a. DoD Speed ripper could do this too, yes or no? > 4b. DeCSS has two "functions", (i) descrambling and (ii) transfer of a copy > to a new medium. Do you object to DeCSS's function of decryption? > 4c. How do you distinguish the *function* of descrambling as performed > by DeCSS from the *function* of descrambling performed by the Xing player? > 4d. Is it possible to play a CSS'ed movie without descrambling? > [Yes, I know this looks redundant with 4e, but it isn't. The P's make > the claim that "you can't plug all the holes". This is why it is so > important to distinguish access control from rights/copy control. Access > isn't a hole to be plugged. If they did that, there would be no movie > to watch.] > 4e. Is it _necessary_ to descramble a CSS'ed movie to watch it? > 4f. If the P's object to coupling (i) and (ii) above, why is this > a 1201(a)(2) suit, and not a 1201(b)(1) suit? A few more along that line: 4g. What are the functions of DeCSS? (assuming decryption and copying): 4h. Does a normal DVD player decrypt the DVD to play it? 4i. Does a normal DVD player have to copy the results of that decryption somewhere to play it, including into ram or the input of another operation of the same software? 4i. Does DeCSS decrypt the DVD using the same means as a normal DVD player in the course of its operation? 4j. Could DeCSS, or some derivation of its source code, be used as a portion of a normal DVD player? 4k. Can one create an operational DVD player that does not perform the functions that DeCSS performs? 4l. Must DeCSS copy files to a hard drive, or can the code be modified to put it somewhere else? RAM? The input of another program? Directly to the screen? To a printer? 4m. For a typical programmer, how difficult would modifying the destination of the output be? 4n. Do programmers often create software in independantly functioning pieces, only to assemble them at a later date? 4o. Might DeCSS be an indepentantly functioning part of a larger program, such as a DVD player? Some of these are minor variations on the ones suggested by Paul, for variety. I guess since the professor teaches CS at Carnegie Mellon this might all be fair game for him to address (unless they decide he's going to be a witness on the law rather than the technology). Make him into our witness ;) Chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 15:13:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14335 for dvd-discuss-outgoing; Mon, 3 Jul 2000 15:13:53 -0400 Received: from dial236.roadrunner.com (dial236.cybermesa.com [209.12.75.236] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA14332 for ; Mon, 3 Jul 2000 15:13:48 -0400 Received: (from paul@localhost) by dial236.roadrunner.com (8.8.7/8.8.7) id NAA01701 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 13:17:12 -0600 Date: Mon, 3 Jul 2000 13:17:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703131710.A1567@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> <3960DE74.5E013A0@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3960DE74.5E013A0@mninter.net>; from moseng@mninter.net on Mon, Jul 03, 2000 at 01:41:56PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 01:41:56PM -0500, Chris Moseng wrote: [ ... ] > 4g. What are the functions of DeCSS? > > (assuming decryption and copying): There is a distinction I've been trying to maintain, although once in a while I forget. I think it is misleading to call CSS "encryption" or what a DVD player does "decryption" because it suggests the use of this cryptography is to solve the privacy problem. When one changes the mode of a cipher's operation (by giving everyone a copy of the key right there on the DVD), one is no longer solving the privacy problem. This is the technical basis for "CSS isn't copy control -- the conditions imposed by CSS's licensing are copy control". Furthermore, the meaning of the word "publication" and "privacy" are antithetical. CSS is obfuscation, not "security". I try to call CSS "scrambling" and what DeCSS and DVD players do "descrambling" to make that distinction explicit. I think this is important: to make a clear access control vs. rights control distinction. Without that distinction, the public's right to access published information, nay -- the very meaning of the word published -- is "balanced" against a confused notion of what is the copyright owner's interest. Robert Thau's post today also contains some important points discussing the distribution of crypto keys. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 16:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16570 for dvd-discuss-outgoing; Mon, 3 Jul 2000 16:07:05 -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 QAA16567 for ; Mon, 3 Jul 2000 16:07:03 -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:2.21) with ESMTP id QAA20614 for ; Mon, 3 Jul 2000 16:09:49 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA12147; Mon, 3 Jul 2000 16:09:48 -0400 (EDT) Date: Mon, 3 Jul 2000 16:09:48 -0400 (EDT) Message-Id: <200007032009.QAA12147@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <20000703131710.A1567@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> <3960DE74.5E013A0@mninter.net> <20000703131710.A1567@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > I try to call CSS "scrambling" and what > DeCSS and DVD players do "descrambling" to make that distinction explicit. Unfortunately, that's still a poor choice of words --- one type of circumvention, according to the DMCA definitions, is to "descramble a scrambled work... without the authority of the copyright owner" (17 USC 1201(a)(3)(A)). What's really missing from CSS, as opposed to cryptography proper, is the distribution of keys separate from the works themselves which signify "the authority of the copyright owner" to view the work and which are required, in the "ordinary course of ... operation" in order to render the work into viewable form. Put another way, CSS doesn't provide access control because a DVD player will happily show you the video on any DVD you plop into it, without checking in any way whether you're authorized. Systems with real encryption keys, separate from the work, like the old Circuit City Divx pay-per-view scheme (which distributed keys for works on physical media over a modem), or pay-per-view cable (which downloads keys for large video streams into a set-top box) *do* make such checks. Which, unlike CSS, provides a degree of protection against Hong Kong stamping-plant piracy --- you can copy Circuit City Divx disks all you want, but without the keys, which are never fixed onto physical media "in the ordinary course of... operation", the copies are useless. If you use "scrambling", as opposed to "encryption", to signify the lack of authority checks, you could be setting yourself up for a rhetorical trap --- viz., the other side pointing out (correctly!) "the law says that scrambling is access control", while diverting attention away from the qualifying phrase about authority which is the real fulcrum of the argument. rst PS: For those who tuned in late, the Divx pay-per-view scheme that I'm talking about was a commercial venture of Circuit City and others that failed fairly recently, and has no connection with the video compressor that the MPAA and others here are talking about, also confusingly named Divx. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 16:50:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16910 for dvd-discuss-outgoing; Mon, 3 Jul 2000 16:50:28 -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 QAA16907 for ; Mon, 3 Jul 2000 16:50:26 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id OAA30997 for ; Mon, 3 Jul 2000 14:53:08 -0600 Date: Mon, 3 Jul 2000 14:53:08 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <20000703001845.A581@localhost> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id QAA16908 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Amend 4 to "systems that can run DeCSS.exe" insert these... 13.5. Do you have any provenance as to how the Matrix was made into DivX? 13.5.a could you swear under oath that it was pirated from DVD? /*FIXME: somehow the possibility that [deleted] is an accomplice of Shamos should get in there. If it's true, all's good and we still don't have any actual damage. If it's false, Shamos should have to explain the fact that he had NO IDEA how that movie was ripped */ 14.5 Were you licensed to own said copy of the Matrix when you downloaded it? 14.5.a did you erase all extant copies of the Matrix when you were done? /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he just set himself up for the Big Hit--willful violation of the law as an officer of the court. If Shamos answers no on 14.5, Garbus oughta personally thank him for making the case. If Shamos answers yes, we still have no proven damage...*/ 16. Do you have any knowlege of this procedure actually happening outside this test, or is this mere inference? Judge Kaplan is getting annoyed by lack of direct damage, so slam them on it. On Mon, 3 Jul 2000, Paul Fenimore wrote: > On Sun, Jul 02, 2000 at 11:46:00PM -0400, wendy@seltzer.com wrote: > > At 07:50 AM 7/1/00 -0400, John Young wrote: > > >We offer the declaration for MPAA by Michael Shamos, professor > > >of computer science at Carnegie Mellon and an intellectual property > > >lawyer: > > > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > > > > >He declares his findings and opinions on several experiments using > > >DeCSS on DVDs and DivXes. > > > > The responses people have been posting look very helpful. What questions > > would you want to ask Shamos at a deposition or cross-examination? I know > > I'm curious as to how long the whole process took him _and his assistants_ > > (especially once we include the Vaio purchase and the install of Win2k in > > that figure). How much did it cost him to get that "free copy" of The > > Matrix? > > > > Would anyone be willing to compile the critiques and questions, even in a > > bulleted list? Again I pass along the defense team's appreciation. > > 6. All of the activities described herein were performed by me > personally or Carnegie Mellon staff members acting at my direction and > supervision. > > 1. How many people? > 2. How much time? > > 11. We inserted the "Sleepless in Seattle" DVD into the DVD drive of > the Sony computer and ran the program. This resulted in multiple .VOB > files comprising decrypted video of the movie. We then removed the DVD > from the DVD drive and were able to view the movie using the standard > Windows Media player without further processing. This demonstrates > that the DeCSS program successfully decrypted the DVD and copied it to > the Sony hard drive. > > 3. What constitutes successful? > 3.a. Loss of sound track? > 3.b. Loss of navigation features? > > 12. Windows 98 imposes a limit on the length of disk files. Because > decrypted DVD files are very large (greater than 5 gigabytes) we > decided to do further experiments using Windows 2000 to remove the > size restriction. > > 4. What fraction of systems shipped in the last (pick a time frame) > can store files longer than 5 GiB? > > 14. We repeated all of the above steps and ran DeCSS again. It located > 10 files on the DVD, five of which had the extension .VOB. We clicked > the button on the DeCSS window labeled "Merge VOB files." This > resulted in a single large .VOB file. We successfully played this file > using Media Player to view "Sleepless in Seattle" (in this case with > one of the alternate sound tracks) without the DVD inserted in the > drive. > > 5. How was it determined that the file was successfully played? Did the > play-times match exactly? > > 15. We converted the .VOB file to DivX, a highly compressed video > format designed so that a DVD movie can be stored on a single CD-ROM > having capacity limited to 650 megabytes. > > 6. Quantify "compressed". What is the loss in image quality? > > 16. We followed these steps: > > a. We loaded the program mIRC, visited #divx by typing /join #divx. > The #divx channel topic was "visit our home page at > http://fm4.org." We did so. > > b. The page has a "Tutorial" section and a "Guide to Fixing > Desynch." We downloaded all required programs as specified on the > page. > > c. We followed all specified instructions to the letter. > > 7. Is the "[t]utorial" page Shamos mentions , or > another document? > 8. Is the "Guide ..." , or another > document? > 9. Are "all required programs" the pair: > > md5sum: > > md5sum: > or not? > > 17. For the DeCSSed movie "Sleepless in Seattle" this procedure > produced a badly desynchronized DivX file, in which the audio was not > properly timed to the video. However, the #divx site contains > instructions for repairing the problem. > > 10. This is goobeldiegook. "#divx" is an irc channel not a web site. > a. How do the instructions contained in "the #divx site" differ from the > instructions mentioned in Shamos declaration ¶16? > b. What on this Good Green Earth Are You Talking About? Declaration are > not supposed to be 20-questions or pantomime. > > 18. We removed the opening trailer of the film to assist in the > synchronization process and performed the fixes as described in the > "Guide to Fixing Desynch." > > 11. "[R]emoved the opening trailer ... to assist in the sync[] process ..." > Does use of the work "assist" mean that other material was elided from the > movie? > > 19. The result of this process was a successfully synchronized copy of > a DivX for the film "Sleepless in Seattle" (in this case with the > standard default soundtrack). > > 12. Too bad we don't know what "this process" refers to. > > 21. We thus obtained a free copy of the DivX for the film "The Matrix" > by trading a copy of "Sleepless in Seattle." Using basic cable modem > service (approximately 640 kilobits per second), it took about 6 hours > to download the DivX. The quality of the video was substantially > better than VHS tape but not quite as good as a DVD. > > 13. Quantify or specify how you decided that VHS is lower quality. > a. Did you watch the same movie on both "DivX" and VHS? > b. Because image quality can easily be dominated by the display device, > what was the display device? Was the display device the same when you > watched both the DivX and VHS versions? > c. If you only watch VHS on NTSC TV screen, it doesn't matter what > the quality of the data is, the image quality is *utterly* dominated > by the abominable NTSC display device. To test VHS you have to run it > through a frame grabber and show it on a high quality display. Otherwise > the comparision is grossly unfair. > d. How big was the file? > > 22. We then conducted further experiments to determine how long it > would take to share the DivX of "The Matrix" with others. Using a 10 > megabit LAN, the file transfer took less than 20 minutes. Using a 100 > megabit LAN available at Carnegie Mellon, the transfer of the > compressed DivX of "The Matrix" was accomplished in three minutes. > > 14. File size? > a. "traceroute" output? > b. network config.? > c. time of day and date? > > 23. There are over 1 million Internet hosts in the .EDU domain, > indicating educational institutions. Most large universities maintain > 10 megabit LANs. It is therefore my conservative estimate that at > least one million university students and faculty around the world > presently have the capability to transfer and share DivX files of > feature-length movies in less than 20 minutes. Home cable modems are > widely available that support transmission at up to 10 megabits per > second. > > 15. No data, or uncited data ("conservative estimate" -> no data, "1 million > hosts" -> uncited data). > a. "20 minutes" if they have the wire to themselves. You just said there > are a million of them. > > Please add as you see fit... > > > Paul Fenimore > -- Who is John Galt? Failure is not an option. It comes bundled with your Microsoft product. -- Ferenc Mantfeld From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 18:37:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19292 for dvd-discuss-outgoing; Mon, 3 Jul 2000 18:37:44 -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 SAA19289 for ; Mon, 3 Jul 2000 18:37:42 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id QAA05158 for ; Mon, 3 Jul 2000 16:40:28 -0600 Date: Mon, 3 Jul 2000 16:40:28 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id SAA19290 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sorry to reply to my own message, but I just got corrected by someone wishing to remain anonymous. amend 13.5.a to "...pirated from DVD using DeCSS" MUCH better than my thought: my thanks to you, anonymous :) On Mon, 3 Jul 2000, John Galt wrote: > > Amend 4 to "systems that can run DeCSS.exe" > > insert these... > > 13.5. Do you have any provenance as to how the Matrix was made into DivX? > 13.5.a could you swear under oath that it was pirated from DVD? > /*FIXME: somehow the possibility that [deleted] is an accomplice of Shamos > should get in there. If it's true, all's good and we still don't have any > actual damage. If it's false, Shamos should have to explain the fact that > he had NO IDEA how that movie was ripped */ > > 14.5 Were you licensed to own said copy of the Matrix when you downloaded > it? > 14.5.a did you erase all extant copies of the Matrix when you were done? > /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he > just set himself up for the Big Hit--willful violation of the law as an > officer of the court. If Shamos answers no on 14.5, Garbus oughta > personally thank him for making the case. If Shamos answers yes, we > still have no proven damage...*/ > > 16. Do you have any knowlege of this procedure actually happening outside > this test, or is this mere inference? > > Judge Kaplan is getting annoyed by lack of direct damage, so slam them on > it. > > On Mon, 3 Jul 2000, Paul Fenimore wrote: > > > On Sun, Jul 02, 2000 at 11:46:00PM -0400, wendy@seltzer.com wrote: > > > At 07:50 AM 7/1/00 -0400, John Young wrote: > > > >We offer the declaration for MPAA by Michael Shamos, professor > > > >of computer science at Carnegie Mellon and an intellectual property > > > >lawyer: > > > > > > > > http://cryptome.org/mpaa-v-2600-dms.htm > > > > > > > >He declares his findings and opinions on several experiments using > > > >DeCSS on DVDs and DivXes. > > > > > > The responses people have been posting look very helpful. What questions > > > would you want to ask Shamos at a deposition or cross-examination? I know > > > I'm curious as to how long the whole process took him _and his assistants_ > > > (especially once we include the Vaio purchase and the install of Win2k in > > > that figure). How much did it cost him to get that "free copy" of The > > > Matrix? > > > > > > Would anyone be willing to compile the critiques and questions, even in a > > > bulleted list? Again I pass along the defense team's appreciation. > > > > 6. All of the activities described herein were performed by me > > personally or Carnegie Mellon staff members acting at my direction and > > supervision. > > > > 1. How many people? > > 2. How much time? > > > > 11. We inserted the "Sleepless in Seattle" DVD into the DVD drive of > > the Sony computer and ran the program. This resulted in multiple .VOB > > files comprising decrypted video of the movie. We then removed the DVD > > from the DVD drive and were able to view the movie using the standard > > Windows Media player without further processing. This demonstrates > > that the DeCSS program successfully decrypted the DVD and copied it to > > the Sony hard drive. > > > > 3. What constitutes successful? > > 3.a. Loss of sound track? > > 3.b. Loss of navigation features? > > > > 12. Windows 98 imposes a limit on the length of disk files. Because > > decrypted DVD files are very large (greater than 5 gigabytes) we > > decided to do further experiments using Windows 2000 to remove the > > size restriction. > > > > 4. What fraction of systems shipped in the last (pick a time frame) > > can store files longer than 5 GiB? > > > > 14. We repeated all of the above steps and ran DeCSS again. It located > > 10 files on the DVD, five of which had the extension .VOB. We clicked > > the button on the DeCSS window labeled "Merge VOB files." This > > resulted in a single large .VOB file. We successfully played this file > > using Media Player to view "Sleepless in Seattle" (in this case with > > one of the alternate sound tracks) without the DVD inserted in the > > drive. > > > > 5. How was it determined that the file was successfully played? Did the > > play-times match exactly? > > > > 15. We converted the .VOB file to DivX, a highly compressed video > > format designed so that a DVD movie can be stored on a single CD-ROM > > having capacity limited to 650 megabytes. > > > > 6. Quantify "compressed". What is the loss in image quality? > > > > 16. We followed these steps: > > > > a. We loaded the program mIRC, visited #divx by typing /join #divx. > > The #divx channel topic was "visit our home page at > > http://fm4.org." We did so. > > > > b. The page has a "Tutorial" section and a "Guide to Fixing > > Desynch." We downloaded all required programs as specified on the > > page. > > > > c. We followed all specified instructions to the letter. > > > > 7. Is the "[t]utorial" page Shamos mentions , or > > another document? > > 8. Is the "Guide ..." , or another > > document? > > 9. Are "all required programs" the pair: > > > > md5sum: > > > > md5sum: > > or not? > > > > 17. For the DeCSSed movie "Sleepless in Seattle" this procedure > > produced a badly desynchronized DivX file, in which the audio was not > > properly timed to the video. However, the #divx site contains > > instructions for repairing the problem. > > > > 10. This is goobeldiegook. "#divx" is an irc channel not a web site. > > a. How do the instructions contained in "the #divx site" differ from the > > instructions mentioned in Shamos declaration ¶16? > > b. What on this Good Green Earth Are You Talking About? Declaration are > > not supposed to be 20-questions or pantomime. > > > > 18. We removed the opening trailer of the film to assist in the > > synchronization process and performed the fixes as described in the > > "Guide to Fixing Desynch." > > > > 11. "[R]emoved the opening trailer ... to assist in the sync[] process ..." > > Does use of the work "assist" mean that other material was elided from the > > movie? > > > > 19. The result of this process was a successfully synchronized copy of > > a DivX for the film "Sleepless in Seattle" (in this case with the > > standard default soundtrack). > > > > 12. Too bad we don't know what "this process" refers to. > > > > 21. We thus obtained a free copy of the DivX for the film "The Matrix" > > by trading a copy of "Sleepless in Seattle." Using basic cable modem > > service (approximately 640 kilobits per second), it took about 6 hours > > to download the DivX. The quality of the video was substantially > > better than VHS tape but not quite as good as a DVD. > > > > 13. Quantify or specify how you decided that VHS is lower quality. > > a. Did you watch the same movie on both "DivX" and VHS? > > b. Because image quality can easily be dominated by the display device, > > what was the display device? Was the display device the same when you > > watched both the DivX and VHS versions? > > c. If you only watch VHS on NTSC TV screen, it doesn't matter what > > the quality of the data is, the image quality is *utterly* dominated > > by the abominable NTSC display device. To test VHS you have to run it > > through a frame grabber and show it on a high quality display. Otherwise > > the comparision is grossly unfair. > > d. How big was the file? > > > > 22. We then conducted further experiments to determine how long it > > would take to share the DivX of "The Matrix" with others. Using a 10 > > megabit LAN, the file transfer took less than 20 minutes. Using a 100 > > megabit LAN available at Carnegie Mellon, the transfer of the > > compressed DivX of "The Matrix" was accomplished in three minutes. > > > > 14. File size? > > a. "traceroute" output? > > b. network config.? > > c. time of day and date? > > > > 23. There are over 1 million Internet hosts in the .EDU domain, > > indicating educational institutions. Most large universities maintain > > 10 megabit LANs. It is therefore my conservative estimate that at > > least one million university students and faculty around the world > > presently have the capability to transfer and share DivX files of > > feature-length movies in less than 20 minutes. Home cable modems are > > widely available that support transmission at up to 10 megabits per > > second. > > > > 15. No data, or uncited data ("conservative estimate" -> no data, "1 million > > hosts" -> uncited data). > > a. "20 minutes" if they have the wire to themselves. You just said there > > are a million of them. > > > > Please add as you see fit... > > > > > > Paul Fenimore > > > > -- Who is John Galt? Failure is not an option. It comes bundled with your Microsoft product. -- Ferenc Mantfeld From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 18:56:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19502 for dvd-discuss-outgoing; Mon, 3 Jul 2000 18:56:01 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA19499 for ; Mon, 3 Jul 2000 18:56:00 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139FAr-0005qU-00; Mon, 03 Jul 2000 15:58:45 -0700 Date: Mon, 3 Jul 2000 15:58:45 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000703155845.W9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000703001845.A581@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from galt@inconnu.isu.edu on Mon, Jul 03, 2000 at 02:53:08PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Galt writes: > 14.5 Were you licensed to own said copy of the Matrix when you downloaded > it? > 14.5.a did you erase all extant copies of the Matrix when you were done? > /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he > just set himself up for the Big Hit--willful violation of the law as an > officer of the court. If Shamos answers no on 14.5, Garbus oughta > personally thank him for making the case. If Shamos answers yes, we > still have no proven damage...*/ He could have had permission from the copyright holders, seeing as he was _working for them_. MPAA anti-piracy investigators, or anti-privacy investigators, and contractors and consultants might well get unusual licenses to copy major studios' motion pictures in the course of their work. It is hard to imagine the studios suing them for their efforts! -- 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 Jul 3 19:50:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19810 for dvd-discuss-outgoing; Mon, 3 Jul 2000 19:50:31 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19807 for ; Mon, 3 Jul 2000 19:50:30 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id SAA22403 for ; Mon, 3 Jul 2000 18:53:01 -0500 Message-Id: <200007032353.SAA22403@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: [dvd-discuss] Shamos Declaration - Some OT Date: Mon, 3 Jul 100 23:53:01 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Did anyone else find it amusing that one of the movies presented for possible download was _Entrapment_? How about _Half_Baked_ and _Cruel_Intentions_? _Army of Darkness_ sound like a particular cabal of movie studios to anyone? The declaration is almost a self-parody. By-the-by, I'm sure we'd like to see the entire chat transcript for the night, obviously, not just the parts used for the declaration. Anything excised from the middle, and anything that occurred beforehand or afterwards. And I'm sure if goes without saying, request the deleted information that was indicated. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 20:25:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20063 for dvd-discuss-outgoing; Mon, 3 Jul 2000 20:25:55 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20060 for ; Mon, 3 Jul 2000 20:25:54 -0400 Received: from 207-172-50-21.s275.tnt7.lnhva.md.dialup.rcn.com ([207.172.50.21] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 139GZs-0002yd-00 for dvd-discuss@eon.law.harvard.edu; Mon, 3 Jul 2000 20:28:41 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] #divx Date: Mon, 3 Jul 2000 20:07:17 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00070320275000.01353@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While I'm sure we are all interested in poking holes in Shamos's argument, as his assertions fly in the face of what we are saying about the practicality of dvd internet piracy, it is not sufficient to merely respond with technical arguments. Shamos's statements argue that a community of "pirates", not unlike the "warez" community has developed, centering around irc channels such as EFnet's #divx. The analogy with "warez" is probably appropriate, since participants on #divx frequently referred to aquiring Adobe Premiere and similar video editors through clandestine channels. Interestingly though, divx users seem to have an interest in acquiring first run movies, such as in this comment. If I start serving here will someone send me the second half of The Patriot, Dragonheart 2, and The Perfect Storm? Also, many of the #divx participants seem to have endless patience... I´m ripping a DVD movie it says that it will take 8h !!!!!!!#¤"#??? sounds about right I'm not suggesting that any of us attempt to pirate movies (publicly), but it may prove useful to occasionally lurk/participate in this channel. Jeremy I´m ripping a DVD movie it says that it will take 8h !!!!!!!#¤"#??? sounds about right From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 21:53:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20666 for dvd-discuss-outgoing; Mon, 3 Jul 2000 21:53:08 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA20663 for ; Mon, 3 Jul 2000 21:53:07 -0400 Received: from ppp.anonymizer.com (c05-158.015.popsite.net [64.24.76.158]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA20735 for ; Mon, 3 Jul 2000 18:58:08 -0700 (PDT) Message-Id: <4.3.2.7.2.20000703184933.00a9b160@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 03 Jul 2000 18:55:39 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Interesting Napster copyright brief 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 If y'all mosey on over to http://slashdot.org/article.pl?sid=00/07/04/0041256&mode=thread, you'll find an article (with link) to the brief which David Boies just filed for Napster in the case by A&M Records, et al. Different case, different law, but there are some arguments which you may find interesting, and now that you're all experts on reading legal briefs ;-) this is a good example of how it's done (with no offense to Marty, Ed). -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 3 23:31:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA21200 for dvd-discuss-outgoing; Mon, 3 Jul 2000 23:31:40 -0400 Received: from mail5.registeredsite.com (root@mail5.registeredsite.com [209.35.159.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA21197 for ; Mon, 3 Jul 2000 23:31:39 -0400 Received: from mail.nearside.com (mail.nearside.com [216.25.52.95]) by mail5.registeredsite.com (8.9.3/8.9.3) with ESMTP id KAA15642 for ; Mon, 3 Jul 2000 10:32:56 -0400 Received: from [24.14.203.65] [24.14.203.65] by mail.nearside.com with ESMTP (SMTPD32-6.00) id AB908F60106; Mon, 03 Jul 2000 23:35:44 -0400 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Mon, 03 Jul 2000 23:34:22 -0400 Subject: Re: [dvd-discuss] Interesting Napster copyright brief From: Jed Borod To: Message-ID: In-Reply-To: <4.3.2.7.2.20000703184933.00a9b160@cyberpass.net> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu on 7/3/00 9:55 PM, James S. Tyre wrote: > Different case, different law, but there are some arguments which you may > find interesting, and now that you're all experts on reading legal briefs > ;-) this is a good example of how it's done (with no offense to Marty, Ed) Grab the pdf from http://dl.napster.com/opposition.pdf. Two points that might be exploited. * Refering to Sony vs. Connectix (Sony recently voluntarily withdrew their complaint), the authors claim that even one non-infrining use outweighs other, infringing uses. * An argument that the RIAA, having abused copyright law, cannot attack Napster. The MPAA has been responsible for a continual assault on the first amendment through legal threats based on a ridiculous interpretation of copyright law, especially the DMCA. Could someone who's a lawyer (as opposed to a starving student) take a look at this principle? Jed Borod From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 02:02:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA21888 for dvd-discuss-outgoing; Tue, 4 Jul 2000 02:02:06 -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 CAA21885 for ; Tue, 4 Jul 2000 02:02:03 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 3F33299C86; Mon, 3 Jul 2000 23:04:49 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 2C8B6938C1 for ; Mon, 3 Jul 2000 23:04:49 -0700 (PDT) Date: Mon, 3 Jul 2000 23:04:48 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Interesting Napster copyright brief In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 3 Jul 2000, Jed Borod wrote: > Grab the pdf from http://dl.napster.com/opposition.pdf. Two points that > might be exploited. > > * Refering to Sony vs. Connectix (Sony recently voluntarily withdrew their > complaint), the authors claim that even one non-infrining use outweighs > other, infringing uses. Be very, very, careful with this one. Sony supposedly withdrew the complaint only so that they could amend it and send it in again. I haven't been able to find the original article stating this, but it's been reposted in rec.games.video.sony lots of times. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 03:34:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22279 for dvd-discuss-outgoing; Tue, 4 Jul 2000 03:34:12 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA22276 for ; Tue, 4 Jul 2000 03:34:11 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id CAA15986 for ; Tue, 4 Jul 2000 02:36:43 -0500 Message-ID: <3961953A.47E8E627@mninter.net> Date: Tue, 04 Jul 2000 02:41:46 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] The old switcheroo -- More Shamos 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 Questions, questions... Who was VaioKid? Was VaioBoy the same person? Were they at the same computer? Were either or both Shamos? Why did the identity change? What does "I have enough bandwidth to courier things" mean? What document did Shamos' team learn that from? How much time does Shamos spend on IRC? How much time do the people who performed the "act" typically spend on IRC? Will you be able to let us know when the deposition of Shamos is taken? So I can stop asking these endless questions? :) Chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 03:55:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA22457 for dvd-discuss-outgoing; Tue, 4 Jul 2000 03:55:46 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA22454 for ; Tue, 4 Jul 2000 03:55:41 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id CAA16779 for ; Tue, 4 Jul 2000 02:58:09 -0500 Message-ID: <39619A35.9297C5C8@mninter.net> Date: Tue, 04 Jul 2000 03:03:01 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Making a DIVX 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 Has anyone on the list attempted to make a DivX? Maybe we can impress the judge that if the judge himself cannot make a DivX, the case should be booted right out of court. I started reading the HOWTO from #divx, and I'm pretty sure no layperson would have the ability or inclination to perform this act. http://fm4.org/tutorial/step2.html >"On my P3-500, 384 megs of ram it sucks about 12-15 meg of actual ram >and another 20-25 of swap/VM, and will run for a good 6-8 hours. It >should be safe to use your PC for other tasks during this process, but >BE CAREFULL! If it crashes (good 'ol Windoze!), you've got to start all >over again, which can lead to PC's flying out of windows." http://fm4.org/tutorial/step3.html >"Now, to complete Step 3, see the "play" button? Hit it & wait about 30 >minutes or so (depending on the speed of your computer). The play >button will be grey while the filter is running, so don't quit >GraphEdit or anything. Your ONLY indication that it's done is when the >button becomes black again and the disk activity stops. Just check it >every once in a while, it'll complete eventually." http://fm4.org/tutorial/step4.html >"Now you're ready for the last stretch, this will be your FINAL >product, with video and audio[...]If you're doing MP3 audio, this can >take about an hour or two." For those playing the home game, that's seven and a half to ten and a half hours on a recent-generation computer with extraordinary ram and Win2k. Just to make a DivX of a movie you legitimately own. Chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 13:52:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26504 for dvd-discuss-outgoing; Tue, 4 Jul 2000 13:52:42 -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 NAA26499 for ; Tue, 4 Jul 2000 13:52:40 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id NAA21321; Tue, 4 Jul 2000 13:55:25 -0400 Date: Tue, 4 Jul 2000 13:55:25 -0400 From: Jim Bauer Message-Id: <200007041755.NAA21321@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Interesting Napster copyright brief Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ken Arromdee wrote: >On Mon, 3 Jul 2000, Jed Borod wrote: >> Grab the pdf from http://dl.napster.com/opposition.pdf. Two points that >> might be exploited. >> >> * Refering to Sony vs. Connectix (Sony recently voluntarily withdrew their >> complaint), the authors claim that even one non-infrining use outweighs >> other, infringing uses. > >Be very, very, careful with this one. Sony supposedly withdrew the complaint >only so that they could amend it and send it in again. > >I haven't been able to find the original article stating this, but it's been >reposted in rec.games.video.sony lots of times. > See article http://news.cnet.com/news/0-1006-200-2176433.html titled "Sony refiles patent suit against Connectic". -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 17:29:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27494 for dvd-discuss-outgoing; Tue, 4 Jul 2000 17:29:58 -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 RAA27491 for ; Tue, 4 Jul 2000 17:29:57 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id PAA22633 for ; Tue, 4 Jul 2000 15:32:45 -0600 Date: Tue, 4 Jul 2000 15:32:45 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <20000703155845.W9454@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 Okay, then there *still* is no proven damage from the 2600 posting of URLS to get you to DeCSS. 14.5 is the "devil's fork": heads we win, tails he loses. On Mon, 3 Jul 2000, Seth David Schoen wrote: > John Galt writes: > > > 14.5 Were you licensed to own said copy of the Matrix when you downloaded > > it? > > 14.5.a did you erase all extant copies of the Matrix when you were done? > > /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he > > just set himself up for the Big Hit--willful violation of the law as an > > officer of the court. If Shamos answers no on 14.5, Garbus oughta > > personally thank him for making the case. If Shamos answers yes, we > > still have no proven damage...*/ > > He could have had permission from the copyright holders, seeing as > he was _working for them_. > > MPAA anti-piracy investigators, or anti-privacy investigators, and > contractors and consultants might well get unusual licenses to copy > major studios' motion pictures in the course of their work. It is > hard to imagine the studios suing them for their efforts! > > -- Customer: "I'm running Windows '98" Tech: "Yes." Customer: "My computer isn't working now." Tech: "Yes, you said that." Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 4 17:57:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27680 for dvd-discuss-outgoing; Tue, 4 Jul 2000 17:57:49 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA27677 for ; Tue, 4 Jul 2000 17:57:48 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139ak9-0007r3-00; Tue, 04 Jul 2000 15:00:37 -0700 Date: Tue, 4 Jul 2000 15:00:37 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000704150037.H9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000703155845.W9454@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from galt@inconnu.isu.edu on Tue, Jul 04, 2000 at 03:32:45PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Galt writes: > Okay, then there *still* is no proven damage from the 2600 posting of URLS > to get you to DeCSS. It would be a defeat if the outcome of this case included a right to link but no protection or very narrow protection for posting circumvention code. -- 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 Jul 4 21:55:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29299 for dvd-discuss-outgoing; Tue, 4 Jul 2000 21:55:56 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA29296 for ; Tue, 4 Jul 2000 21:55:55 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA15032 for ; Tue, 4 Jul 2000 20:58:29 -0500 Message-ID: <396297D5.D16C419C@mninter.net> Date: Tue, 04 Jul 2000 21:05:09 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Broadband: current harm? 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 Who's got broadband? ZDNet to the rescue! July 4, 2000: "There are currently 2.3 million cable subscribers compared with an estimated half a million to 1 million DSL subscribers. But International Data Corporation predicts that by 2003, DSL subscriptions will jump to 9.2 million, slightly outnumbering the projected 9 million cable users." That's <1% of the US today, moving to 6.6% by 2003. Meanwhile, Plaintiff Sony Corp released their annual report today and left us this gem about their Motion Pictures unit: "The decreases in sales and profit were primarily due to the yen's appreciation. In the Motion Picture group, although several theatrical releases recorded losses, several other films contributed to box-office revenues, and home video revenues increased, particularly from DVD format unit sales." I was unable to find a breakdown of their Motion Pictures revenue by category. The DVD Video group also had this to say on April 13, 2000: "According to figures compiled by Ernst & Young on behalf of the DVD Entertainment Group, nearly 30 million DVD movies and music videos shipped in the first three months of 2000. This figure represents a 200 percent increase over the number of titles shipped in the same quarter last year." Explain to me where their supposed harm can be found? From where I sit, as consumer broadband installations increased from 0 to 2.3 million, DVD video sales have only increased. Harm indeed. Sources: http://www.zdnet.com/anchordesk/stories/story/0,10738,2597944,00.html http://www.world.sony.com/IR/Financial/AR/2000/ http://www.world.sony.com/IR/Financial/AR/2000/financial/MDA.html http://www.dvdinformation.com/news/index.html http://www.dvdinformation.com/news/press/041300.html --- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 02:46:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA31016 for dvd-discuss-outgoing; Wed, 5 Jul 2000 02:46:10 -0400 Received: from dial119.roadrunner.com (dial119.cybermesa.com [209.12.75.119] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA31013 for ; Wed, 5 Jul 2000 02:46:07 -0400 Received: (from paul@localhost) by dial119.roadrunner.com (8.8.7/8.8.7) id AAA02228 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 00:49:42 -0600 Date: Wed, 5 Jul 2000 00:49:41 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000705004940.A2207@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000703110635.B929@localhost>; from fenimore@roadrunner.com on Mon, Jul 03, 2000 at 11:06:35AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Nit picking: On Mon, Jul 03, 2000 at 11:06:35AM -0600, Paul Fenimore wrote: > On Mon, Jul 03, 2000 at 08:54:11AM -0400, Dan Steinberg wrote: > > Of all of these questions, #4-5 should be at the top of the list. > > After that, the rest is history (but why not find out while we have > > the chance ). [ ... ] > > Chris Moseng wrote: [ ... ] > > > 4. Is DeCSS a necessary step in performing the acts in this declaraion? > > 4a. DoD Speed ripper could do this too, yes or no? > 4b. DeCSS has two "functions", (i) descrambling and (ii) transfer of a copy > to a new medium. Do you object to DeCSS's function of decryption? ... (ii) transfer of the work to a new medium ... ^^^^ Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 12:01:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01617 for dvd-discuss-outgoing; Wed, 5 Jul 2000 12:01:33 -0400 Received: from dial205.roadrunner.com (sf-du205.cybermesa.com [209.12.75.205]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA01614 for ; Wed, 5 Jul 2000 12:01:29 -0400 Received: (from paul@localhost) by dial205.roadrunner.com (8.8.7/8.8.7) id KAA00901 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 10:04:51 -0600 Date: Wed, 5 Jul 2000 10:04:49 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000705100448.A800@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> <3960DE74.5E013A0@mninter.net> <20000703131710.A1567@localhost> <200007032009.QAA12147@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: <200007032009.QAA12147@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Jul 03, 2000 at 04:09:48PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 03, 2000 at 04:09:48PM -0400, Robert S. Thau wrote: > Paul Fenimore writes: > > I try to call CSS "scrambling" and what > > DeCSS and DVD players do "descrambling" to make that distinction explicit. > > Unfortunately, that's still a poor choice of words --- one type of > circumvention, according to the DMCA definitions, is to "descramble a > scrambled work... without the authority of the copyright owner" (17 > USC 1201(a)(3)(A)). The thing I was trying to say earlier and in my comment on the June 27th hearing is that whether or not a _procedure_ provides security or is merely obfuscation (i.e. scrambling) does nothing to determine whether or not a _person_ is authorized to access a work. The distinction between whether a _procedure_ is descrambling versus whether a _person_ is authorized is something that Kaplan has totally missed. Kaplan (still! 5.5 months later) doesn't realize that descrambling happens on 1201-access whether or not a person is authorized. I'm not trying to use "scrambling" to distinguish authorized from unauthorized. I think that distinction is made by "--" vs. "circumvention". "--" might be "access" or "legitimate access". Very early I posted some diatribe about how "circumvention" was abused as a word in the statute. At the time I said it wasn't specified what was being circumvented. I think that's probably true, but misses the point. The statute gives the word for those evil people who would watch a movie after it is published and purchased, but we have no good term for the opposite of "circumvention". Although the statute doesn't define "access", for purposes of this lawsuit we are probably safe equating access with decryption or descrambling. Earlier, Peter Junger tried (not very successfully) to tell me the "access" in section 1201(a) _can't_ be the same "access" used in infringement litigation. He's right. In infringement litigation, one has to get "access" before one can copy. Clearly, one can make a copy of the cipher-text without ever gaining 1201-access (descrambling) to the cipher-text to generate the plain-text. The issue of whether one can subsequently make non-copying use of an unauthorized copy of the cipher-text is really a independent issue. There could be many ways to gain 1201-access to the work, regardless of the authorization model, and quite independently of the infringement-access to make a copy of the cipher-text. There are uses of cryptography under section 1201(a) that would be "encryption" rather than "scrambling" or "obfuscation". Encryption of a work while it is delivered would keep third parties from making use of the work if intercepted in transit. That's clearly encryption as a solution to the privacy problem -- the opponents are any third parties who want to make non-copying use of the work. On the other hand, all uses of cryptography to scramble a work fixed in an authorized copy after publication are obfuscation/scrambling. I agree that Divx pay-per-view has an authority model that works in the context of 1201(a). Instead my point about "scrambling" is that the work is stored-data rather than transmitted data on an untrusted public network. Access to the plain-text work is presumably granted to the copy-owner, otherwise the copy-owner would not have shelled out dough. There is no opponent in the stored-data case if that data is published. > What's really missing from CSS, as opposed to cryptography proper, is > the distribution of keys separate from the works themselves which > signify "the authority of the copyright owner" to view the work and > which are required, in the "ordinary course of ... operation" in order > to render the work into viewable form. > > Put another way, CSS doesn't provide access control because a DVD > player will happily show you the video on any DVD you plop into it, > without checking in any way whether you're authorized. Systems with > real encryption keys, separate from the work, like the old Circuit > City Divx pay-per-view scheme (which distributed keys for works on > physical media over a modem), or pay-per-view cable (which downloads > keys for large video streams into a set-top box) *do* make such > checks. Which, unlike CSS, provides a degree of protection against > Hong Kong stamping-plant piracy --- you can copy Circuit City Divx > disks all you want, but without the keys, which are never fixed onto > physical media "in the ordinary course of... operation", the copies > are useless. > > If you use "scrambling", as opposed to "encryption", to signify the > lack of authority checks, you could be setting yourself up for a > rhetorical trap --- viz., the other side pointing out (correctly!) > "the law says that scrambling is access control", while diverting > attention away from the qualifying phrase about authority which is the > real fulcrum of the argument. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 12:31:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01893 for dvd-discuss-outgoing; Wed, 5 Jul 2000 12:31:31 -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 MAA01890 for ; Wed, 5 Jul 2000 12:31:30 -0400 Message-ID: <20000705163348.22721.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 05 Jul 2000 09:33:48 PDT Date: Wed, 5 Jul 2000 09:33:48 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Declaration of Michael Shamos 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.com wrote: > What questions would you want to ask Shamos at a deposition or > cross-examination? Here's my contribution to this. Sorry for any duplication, I got behind on reading the list over the long weekend. 1. What was your hourly consulting fee? Total bill so far? 2. How many "assistants" did you have? What was their fee? 3. How many total hours did it take you to create your DivX of Sleepless in Seatle? What does this translate to in dollars? 4. What does it cost to rent a DVD at Blockbuster or equivalent? 5. You testified (item 12) that Win98 imposses a size limit on single files and that you decided for this reason to upgrade to Win2000. a. Was Win2000 on the market when DeCSS was created? b. Was DeCSS written for use in the context of Win2000 ? c. The experiment that you did could not been the intended use of DeCSS for this reason, could it? 6. You testified in (item 14) that you viewed the movie using Windows Media Player: a. Was this or equivalent available when DeCSS was created? b. Are there any open source equivalents to Media Player? c. Could these allow the video to be viewed for "home use" on an alternative OS in exactly the same way? d. What does the copyright licence on "Sleepless In Seatle" say? 7. Regarding IRC: a. The person who sent you "The Matrix" was clearly breaking ordinary copyright law by doing so were they not? b. If DeCSS had never existed, can you testify that you could not have obtained "The Matrix" in this way. c. If DeCSS is banned, what would stop would be copyright infringers from trading it or their tool of choice over IRC? d. Do you think the DMCA or a permanent injunction will convince copyright infringers to obey the law? e. The only way to catch this kind of piracy is to monitor such channels, correct? 8. When was DivX created? When did it become widely available? 9. Is there any indication that DeCSS was designed to interoperate with DivX? Does DeCSS produce DivX output? 10. You testified (iten 18) that after using DeCSS, you were able to remove the opening trailer to the film. How could you have done this editing without using DeCSS? Did DeCSS make this easier in any way? 11. If someone wanted to make a fair use editing of a movie clip, wouldn't DeCSS or equivalent enable this? 12. Is there a consumer demand for tools that assist with video editing? 13. You testified the video output of DivX is "not as good" as DVD. Are there any other degraded functions besides video? 14. Do you know how many customers Nortel Networks has currently for it's AC broadband capability (item 24). How many areas is this now available in? 15. You testified that bandwidth is doubling rapidly on the internet - is demand for that bandwidth also growing? Did you measure this yourself? [chuckle] Do you have citations for your figures? Isnt' the growth of effective bandwidth per user growing much more slowly? 16. What is the bandwidth between a video card and a monitor? 17. Can the raw video output be captured? What is a capture card? 18. Could this captured video be compressed? 19. You testified that a user with "a degree of video expertise" could create a DivX using DeCSS. Would such a person be able to use a capture card? Would such a person be able to use other tools besides DeCSS? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 12:37:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02031 for dvd-discuss-outgoing; Wed, 5 Jul 2000 12:37:23 -0400 Received: from dial92.roadrunner.com (sf-du92.cybermesa.com [209.12.75.92]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02028 for ; Wed, 5 Jul 2000 12:37:20 -0400 Received: (from paul@localhost) by dial92.roadrunner.com (8.8.7/8.8.7) id KAA01069 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 10:40:44 -0600 Date: Wed, 5 Jul 2000 10:40:43 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] June 27th hearing, p.34,35 Message-ID: <20000705104042.A913@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 Page 34: THE COURT: [ ... ] 8 As I say, that does not attempt to be exhaustive but 9 it really does show what's at the heart of the case. I don't 10 mean to exclude also factors that are relevant to balancing 11 whatever First Amendment interests there may be in the case 12 assuming that the plaintiffs establish a violation of the DMCA 13 without regard to First Amendment consideration. In that [ ... ] The discussion of "balancing" is one of the things that really requires a clear distinction between access control circumvention in 1201(a) versus rights control circumvention in 1201(b) or exclusive rights in 106. The P's try to confuse the issue of access control circumvention with circumvention of rights control and perhaps infringement. If the plaintiffs are allowed to do this, then the right to use information is balanced against their interest in exclusive rights. The P's talk about copying (=duplication), which is an exclusive right. Yet they are suing under 1201(a)(2). So why does 1201(b) exist if the P's can file a 1201(a) suit, and then turn around and blab about their exclusive rights? THE COURT: 25 Indeed, it is arguably the case that the plaintiffs Page 35: 1 can make out a prima facie case of a violation of the DMCA by 2 establishing that CSS effectively controlled access to 3 copyrighted works which the defendants conceded already in 4 this case and that the DECS circumvents CSS and has little or 5 no other purpose. At least part of that appears to be There is *NOTHING* prima facie about DeCSS violating the DMCA. Devices don't circumvent. Devices access. Some *acts* of access are circumvention. Access without authority is circumvention. Access with authority is not circumvention. 1. Steal a DVD. 2. Drop it into a player. 3. Push the play button. 4. Watch the movie. A. Buy a DVD. B. Drop it into a player. C. Push the play button. D. Watch the movie. So, the judge wants us to believe that the thief is authorized? Or does he want us to believe that the legitimate buyer is not authorized to watch the movie? The only difference lies in "1" vs. "A". I think there are two key points the judge doesn't get: 1. *ALL* DVD players *MUST* descramble the work. Otherwise there would nothing to watch. "Descrambling" does not help distinguish circumvention from either access or legitimate access. 2. There isn't _a_ work at issue in a cryptographic system. There is the plaintext and the ciphertext. 1201-access regulates the conversion of cipher- to plain-text. It doesn't regulate the copying of the cipher-text. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 12:40:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02159 for dvd-discuss-outgoing; Wed, 5 Jul 2000 12:40:57 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02156 for ; Wed, 5 Jul 2000 12:40:56 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id JAA02849 for ; Wed, 5 Jul 2000 09:43:36 -0700 Date: Wed, 5 Jul 2000 09:43:34 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] New way of phrasing? In-Reply-To: <20000705100448.A800@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 Since we would like to say that CSS isn't any kind of DMCA protected scrambling, encryption or other encoding, might we say that DeCSS removes "player dependence" from DVD released movies? We all know that what CSS does is tie dvd discs to players licensed by the DVD-CCA, so why not call them on it directly. It's not encryption because the key comes with the disc? Well, one key comes with the disc and another with the player. In that sense, it IS encryption. You have to have a licensed player to decrypt. Also, where does the argument about copyright expiration come in? Does there need to be a mechanism in place for accessing works once their copyrights have expired? And lastly, does anyone know of a public domain movie that's been released on DVD with CSS? More words just to get folks thinking (even if it's just about how dumb I am), Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 12:42:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02263 for dvd-discuss-outgoing; Wed, 5 Jul 2000 12:42:34 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02258 for ; Wed, 5 Jul 2000 12:42:31 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA12769 for ; Wed, 5 Jul 2000 11:44:49 -0500 Message-ID: <39636572.5EB551D9@mninter.net> Date: Wed, 05 Jul 2000 11:42:26 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> <3960DE74.5E013A0@mninter.net> <20000703131710.A1567@localhost> <200007032009.QAA12147@soggy-fibers.ai.mit.edu> <20000705100448.A800@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > The thing I was trying to say earlier and in my comment on the June 27th > hearing is that whether or not a _procedure_ provides security or is > merely obfuscation (i.e. scrambling) does nothing to determine whether > or not a _person_ is authorized to access a work. The distinction > between whether a _procedure_ is descrambling versus whether a _person_ is > authorized is something that Kaplan has totally missed. This is exactly my point in my message on July 1, and I completely agree. This is definitely an issue I think we've got our hands around in the questions for Prof. Shamos--and I sent a note to Mr. Hernstadt to encourage that the result is perfectly clear. I'll flesh that position out here. Unless someone has a good idea why it might, DeCSS cannot be said to circumvent in a technological sense--it is just as much a CSS counterpart as any other DVD player's descrambling function. The two processes are indistinguishable. Does DeCSS descramble CSS-treated movies in the same way as a common DVD player? Yes. End of story. DeCSS may or may not circumvent in an abstract/legal/authority-granting fashion depending on who wins this case. The MPAA has tried to conflate the two circumventions, and by disassembling them we strengthen our case. Once it's proved that DeCSS does not circumvent in a technological sense, we are only left to prove that DeCSS does not circumvent in the authority sense--easy enough. They will say "but the key that DeCSS uses is not authorized to descramble!" And we will say "Where does one find information about authorization? On the DVD? At a website? Nowhere, that's where. When does one discover that their authorization might be revoked? Never." Case closed. I am reasonably assured that with appropriate wording we can get Prof. Shamos, as a witness on the technological issues, to concede that DeCSS does not circumvent CSS technologically when it is used. If Shamos won't do it, we'll just have to get a witness of our own that will. If I'm misinterpreting or forgetting anything, someone please shout! My July 1 email: http://eon.law.harvard.edu/archive/dvd-discuss/msg04344.html --- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 13:18:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02647 for dvd-discuss-outgoing; Wed, 5 Jul 2000 13:18:20 -0400 Received: from dial106.roadrunner.com (sf-du106.cybermesa.com [209.12.75.106]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02644 for ; Wed, 5 Jul 2000 13:18:15 -0400 Received: (from paul@localhost) by dial106.roadrunner.com (8.8.7/8.8.7) id LAA01491 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 11:21:40 -0600 Date: Wed, 5 Jul 2000 11:21:39 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000705112138.B1226@localhost> References: <200007011158.HAA28856@granger.mail.mindspring.net> <3960829F.DB6C31D@mninter.net> <39608CF3.10C620F9@travel-net.com> <20000703110635.B929@localhost> <3960DE74.5E013A0@mninter.net> <20000703131710.A1567@localhost> <200007032009.QAA12147@soggy-fibers.ai.mit.edu> <20000705100448.A800@localhost> <39636572.5EB551D9@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39636572.5EB551D9@mninter.net>; from moseng@mninter.net on Wed, Jul 05, 2000 at 11:42:26AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Many bytes were spilled in this direction in March. The results are pretty firm, and "authority" is very much a fulcrum to break the P's case into tiny bits. I especially enjoyed the thread beginning at: On Wed, Jul 05, 2000 at 11:42:26AM -0500, Chris Moseng wrote: > > The thing I was trying to say earlier and in my comment on the June 27th > > hearing is that whether or not a _procedure_ provides security or is > > merely obfuscation (i.e. scrambling) does nothing to determine whether > > or not a _person_ is authorized to access a work. The distinction > > between whether a _procedure_ is descrambling versus whether a _person_ is > > authorized is something that Kaplan has totally missed. > > This is exactly my point in my message on July 1, and I completely > agree. > > This is definitely an issue I think we've got our hands around in the > questions for Prof. Shamos--and I sent a note to Mr. Hernstadt to > encourage that the result is perfectly clear. I'll flesh that position > out here. > > Unless someone has a good idea why it might, DeCSS cannot be said to > circumvent in a technological sense--it is just as much a CSS > counterpart as any other DVD player's descrambling function. The two > processes are indistinguishable. Does DeCSS descramble CSS-treated > movies in the same way as a common DVD player? Yes. End of story. "Circumvent" is the legal term. "Decrypt" is the technical term. Descramble is my favored term for encryption that is used in a way that doesn't solve the privacy problem. > DeCSS may or may not circumvent in an abstract/legal/authority-granting > fashion depending on who wins this case. Although a particular device may do the circumventing, I don't think this is a helpful way to talk about it. If two people have two disks, first person gets a stolen disk, the second person gets a purchased disk, the player has no way to tell people apart or disks from one another. Authority to un-CSS _can't_ attach to a player. Acts of circumvention are possible. Whether or not DeCSS is used to circumvent is a property of the act in question, not the DeCSS "product". If the device is a "circumventing device", then we get into logical contradictions. The theft-of-DVD scenario is probably a counter example to the test of "requires" needed for a measure to be effective as per 1201(a)(3)(B). This is in addition to the CSS's failure of authorization model, a required test in (a)(3)(A). > The MPAA has tried to conflate the two circumventions, and by > disassembling them we strengthen our case. Once it's proved that DeCSS > does not circumvent in a technological sense, we are only left to prove > that DeCSS does not circumvent in the authority sense--easy enough. They > will say "but the key that DeCSS uses is not authorized to descramble!" > And we will say "Where does one find information about authorization? On > the DVD? At a website? Nowhere, that's where. When does one discover > that their authorization might be revoked? Never." Case closed. > > I am reasonably assured that with appropriate wording we can get Prof. > Shamos, as a witness on the technological issues, to concede that DeCSS > does not circumvent CSS technologically when it is used. If Shamos won't > do it, we'll just have to get a witness of our own that will. > > If I'm misinterpreting or forgetting anything, someone please shout! > > My July 1 email: > http://eon.law.harvard.edu/archive/dvd-discuss/msg04344.html Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 13:53:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02921 for dvd-discuss-outgoing; Wed, 5 Jul 2000 13:53:46 -0400 Received: from dial215.roadrunner.com (dial215.cybermesa.com [209.12.75.215] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAB02909 for ; Wed, 5 Jul 2000 13:53:43 -0400 Received: (from paul@localhost) by dial215.roadrunner.com (8.8.7/8.8.7) id LAA01663 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 11:57:13 -0600 Date: Wed, 5 Jul 2000 11:57:12 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705115712.C1226@localhost> References: <20000705100448.A800@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jeme@brelin.net on Wed, Jul 05, 2000 at 09:43:34AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 09:43:34AM -0700, Jeme A Brelin wrote: > > Since we would like to say that CSS isn't any kind of DMCA protected > scrambling, encryption or other encoding, might we say that DeCSS removes > "player dependence" from DVD released movies? I agree with this. > We all know that what CSS does is tie dvd discs to players licensed by the > DVD-CCA, so why not call them on it directly. > > It's not encryption because the key comes with the disc? > Well, one key comes with the disc and another with the player. Title and disk keys (two) come on the disk. The player key comes in the player. The "buss key" is really just a stupid challenge-response procedure that proves you know the CSS algorithm. Eric Seppanen's posts on this subject are very helpful. > In that sense, it IS encryption. I think it is helpful to keep the distinction between cryptography (a bag of mathematical tricks) and encryption clear (the use of those tricks in particular ways). Giving away the key to enciphered data is not a solution to the privacy problem. > You have to have a licensed player to decrypt. Not true. DeCSS is not licensed by the DVD-CCA. It decrypts. "Decryption" != circumvention. The law makes circumvention illegal, not decryption. Circumvention and legitimate access also depend on other fact beyond decryption, like "authorization". Once you analyze authorization, the player==authority line of reasoning falls to bits. The technological point I've been trying to make is that 1. There is no opponent. This is not a solution to the privacy problem because a. The work is published. Published != secret. b. _Anyone_ can view the plain-text by pushing the "play" button. 2. It doesn't have to be this way. I'm not reading the law out of existence this way. "Black-boxes" are still illegal. The law has potentially valid uses, CSS isn't one of them. > Also, where does the argument about copyright expiration come in? The technological measure doesn't go away when copyright expires. Take a look at Robert Thau's February postings on code-is-law. > Does there need to be a mechanism in place for accessing works once their > copyrights have expired? 1201(a)(1) would no longer apply because the work would be in public domain. (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No copyright --> no circumvention is possible. That would be a significant non-circumventing use for a descrambling device under (a)(2). Better plan on living a long time though, the Congress at the behest of their bosses in the MPAA is on the 20-year installment plan to unlimited copyright. > And lastly, does anyone know of a public domain movie that's been released > on DVD with CSS? There are others besides Dr. Caligari's Cabinet. The problem is that most of the movies have been colorized, so these are derivative works. New copyright. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 13:55:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03000 for dvd-discuss-outgoing; Wed, 5 Jul 2000 13:55:35 -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 NAA02997 for ; Wed, 5 Jul 2000 13:55:32 -0400 Message-ID: <20000705175751.5962.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 05 Jul 2000 10:57:51 PDT Date: Wed, 5 Jul 2000 10:57:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Declaration of Michael Shamos 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 --- Chris Moseng wrote: > Unless someone has a good idea why it might, DeCSS cannot be said to > circumvent in a technological sense--it is just as much a CSS > counterpart as any other DVD player's descrambling function. The two > processes are indistinguishable. Does DeCSS descramble CSS-treated > movies in the same way as a common DVD player? Yes. End of story. A good way to make this point is by pointing out that Prof. Shamos used DeCSS to decrypt Sleepless in Seatle with the authority of the copyright owner, since they hired him precisely for this reason. His access was not circumvention by any standard. Once the judge understands this, you can launch into the access with the authority granted by the copyright licence (and copyright law in general) for private home viewing. First sale authorizes access, generally anyway. Any other scheme is misuse of copyright and/or misuse of paracopyright. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 13:58:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03166 for dvd-discuss-outgoing; Wed, 5 Jul 2000 13:58:46 -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 NAA03163 for ; Wed, 5 Jul 2000 13:58:44 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 139tUI-0004eQ-00; Wed, 5 Jul 2000 20:01:30 +0200 Received: from localhost by sites.inka.de with local id 139tUH-0000W1-00; Wed, 5 Jul 2000 20:01:29 +0200 Date: Wed, 5 Jul 2000 20:01:29 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705200129.A31927@inka.de> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000705115712.C1226@localhost>; from fenimore@roadrunner.com on Wed, Jul 05, 2000 at 11:57:12AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 11:57:12AM -0600, Paul Fenimore wrote: > > Does there need to be a mechanism in place for accessing works once their > > copyrights have expired? > > 1201(a)(1) would no longer apply because the work would be in public domain. > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > copyright --> no circumvention is possible. Hadn't we established that there are already public domain works published on encrypted DVDs? Sham -- http://sites.inka.de/risctaker/DeCSS/ "The war is never competely won. There are always new battles to be fought against the darkness. Only the names change." (Ambassador Delenn, Babylon 5) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:20:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03419 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:20:14 -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 OAA03416 for ; Wed, 5 Jul 2000 14:20:12 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id MAA04430 for ; Wed, 5 Jul 2000 12:22:54 -0600 Date: Wed, 5 Jul 2000 12:22:54 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <20000704150037.H9454@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 So having the case thrown out with predjudice is a loss? On Tue, 4 Jul 2000, Seth David Schoen wrote: > John Galt writes: > > > Okay, then there *still* is no proven damage from the 2600 posting of URLS > > to get you to DeCSS. > > It would be a defeat if the outcome of this case included a right to > link but no protection or very narrow protection for posting > circumvention code. > > -- Seeing is deceiving. It's eating that's believing. -- James Thurber John Galt (galt@inconnu.isu.edu) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:24:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03548 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:24:13 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03545 for ; Wed, 5 Jul 2000 14:24:11 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139tsv-0001U0-00; Wed, 05 Jul 2000 11:26:57 -0700 Date: Wed, 5 Jul 2000 11:26:57 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705112657.Y9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000705200129.A31927@inka.de>; from mail@risctaker.inka.de on Wed, Jul 05, 2000 at 08:01:29PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner writes: > On Wed, Jul 05, 2000 at 11:57:12AM -0600, Paul Fenimore wrote: > > > Does there need to be a mechanism in place for accessing works once their > > > copyrights have expired? > > > > 1201(a)(1) would no longer apply because the work would be in public domain. > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > copyright --> no circumvention is possible. > > Hadn't we established that there are already public domain works published > on encrypted DVDs? If there are, they might still contain new copyrighted material. If somebody finds such a DVD, see if it has a copyright notice, and then ask the copyright holder what it claims copyright in. The plaintiffs already know about this concern, because we've been discussing it here. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:25:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03621 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:25:50 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03617 for ; Wed, 5 Jul 2000 14:25:49 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139tuZ-0001U7-00; Wed, 05 Jul 2000 11:28:39 -0700 Date: Wed, 5 Jul 2000 11:28:39 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000705112839.Z9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000704150037.H9454@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from galt@inconnu.isu.edu on Wed, Jul 05, 2000 at 12:22:54PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Galt writes: > So having the case thrown out with predjudice is a loss? > > On Tue, 4 Jul 2000, Seth David Schoen wrote: > > > John Galt writes: > > > > > Okay, then there *still* is no proven damage from the 2600 posting of URLS > > > to get you to DeCSS. > > > > It would be a defeat if the outcome of this case included a right to > > link but no protection or very narrow protection for posting > > circumvention code. There's an injunction against 2600 posting DeCSS. If that injunction becomes permanent, even without a further injunction against linking, even with a comment from Kaplan that "linking is the mainstay of the Internet", that's a loss. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:29:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03740 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:29:29 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03737 for ; Wed, 5 Jul 2000 14:29:27 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139ty2-0001Uo-00; Wed, 05 Jul 2000 11:32:14 -0700 Date: Wed, 5 Jul 2000 11:32:14 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705113214.A9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000705115712.C1226@localhost>; from fenimore@roadrunner.com on Wed, Jul 05, 2000 at 11:57:12AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > > Also, where does the argument about copyright expiration come in? > > The technological measure doesn't go away when copyright expires. Take > a look at Robert Thau's February postings on code-is-law. > > > > Does there need to be a mechanism in place for accessing works once their > > copyrights have expired? > > 1201(a)(1) would no longer apply because the work would be in public domain. > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > copyright --> no circumvention is possible. > > That would be a significant non-circumventing use for a descrambling device > under (a)(2). Doesn't _that_ read the law out of existence? > Better plan on living a long time though, the Congress at > the behest of their bosses in the MPAA is on the 20-year installment plan > to unlimited copyright. Plaintiffs can simply argue that the expiration of copyright on DVDs at some time in the future is not relevant because no copyrights are ever going to expire, ever again. :-) :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:31:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03829 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:31:52 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03826 for ; Wed, 5 Jul 2000 14:31:51 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id NAA29454 for ; Wed, 5 Jul 2000 13:34:42 -0500 (CDT) Message-ID: <396372E5.B5DF5A40@uic.edu> Date: Wed, 05 Jul 2000 12:39:49 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Shamos declaration 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 responses people have been posting look very helpful. What questions > would you want to ask Shamos at a deposition or cross-examination? (1) Was the copy of "The Matrix" that you received also created using DeCSS? How can you tell, or why can't you tell? Could the DivX file you received have been derived from anything except a DVD using DeCSS? This is what the deposition implies but does not say -- that Mr Shamos engaged in a reciprocal trade of works decoded via DeCSS. However, the "Matrix" copy he received could have originated from any number of sources -- a camcorder in a theatre, a video capture of a screener tape, a video capture of a VHS tape, a video capture of a DVD, or DeCSS. With this deposition, the plaintiffs have now established that there is at least one copyrighted work in circulation that has been derived from DeCSS, a copy of "Sleepless in Seattle", but that copy, having been created and disseminated under the direction of and with the authorization of the copyright holder, is non-infringing. Thus, fully 100% of the circulating DivX files that the plaintiff can positively identify as having been derived from DeCSS are non-infringing. (2) (how to phrase this ...) To what extent did your having produced your copy of "Sleepless in Seattle" using DeCSS affect your ability to trade for another movie? The point I'm trying to make is that nowhere in the chat exchange did Mr. Shamos mention that his copy of "Sleepless in Seattle" had been derived from DeCSS. Neither did the mystery person mention DeCSS or indicate in any way that a DeCSS derived DivX file was any more or less desirable then a DivX file derived from other sources. The mystery person didn't say anything to the effect of, "I only collect and trade DivXs that were directly ripped from the DVD", or even, "How's the quality?" The mystery person appeared completely unconcerned about the picture or audio quality of the files he was trading. This suggests that Mr. Shamos' use of DeCSS had no effect on his ability to trade DivXs. Mr. Shamos could have used a video capture card to create his DivX of "Sleepless in Seattle", and the "trading encounter" would have proceeded identically. Mr. Shamos has, if anything, demonstrated that DeCSS has zero value in the "real world" of trading low-quality DivX files. o How did you determine that the video quality was "substantially better than VHS tape but not quite as good as a DVD." Most likely he compared the DivX image on a computer monitor with a video image on a television. This is misleading, because computer monitors are of much higher resolution and offer better image quality then televisions. Computer monitors are also much more expensive on an inch-by-inch basis then televisions. For example, on circuitcity.com, the prices for 19 inch television sets run from $129 to $349. The prices for 19 inch computer monitors run from $349 to $549. The price ratios increase for larger monitors. On circuitcity.com, the price range for a 27 inch television set runs from $239 to $599. Since circuitcity.com doesn't offer monitors larger then 19 inches, I priced 27 inch computer monitors at www.egghead.com, and found prices ranging from $978 at the low end, to $3763 for the most expensive model. I suggest that the defense obtain a copy of the DivX file of The Matrix, as received by Mr. Shamos from his six hour download, pick out some of the most action-packed (as in difficult-to- compress) scenes, and play them through a NTSC capable video card onto an ordinary television set. This "demonstration" of DivX quality, when shown side by side with a commercial VHS copy of the same scenes, would most likely clearly show digital artifacts and glitches in the DivX version that are not present on the VHS tape. With the possible exception of scenes with little or no action, I seriously doubt that the DivX version will look "substantially better than VHS tape" in a side-by-side comparison on identical televisions. By use of screen grabs and the "screen freeze" feature found on higher end televisions, it should be easy to demonstrate that the DivX image is highly inferior to the commercial videotape. At any rate, the plaintiffs are succeeding in changing the nature of the trial. It is supposed to be DeCSS and "perfect digital copies" at issue here -- not DivX degraded files. The expression "bait-and-switch" comes to mind. Alternately, the defense could hire someone to produce a DivX file of "Sleepless in Seattle" from a VHS tape, and enter it as evidence that ues of DeCSS is completely unnecessary in the process of preparing a DivX file. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:45:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03928 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:45:28 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03925 for ; Wed, 5 Jul 2000 14:45:26 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id NAA01806 for ; Wed, 5 Jul 2000 13:48:18 -0500 (CDT) Message-ID: <39637615.F3193B7E@uic.edu> Date: Wed, 05 Jul 2000 12:53:25 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One more hypothetical question for Mr. Shamos. Given all of the time and trouble -- a six hour download time, the loss of use of both your computer and phone line during the download, (what is the connect-time cost for a six hour download?) and the resulting image quality of your "Matrix" DivX file, self-described as inferior to DVD, would you be more inclined personally to repeat the experience to obtain your next movie, or would you be more inclined to purchase or rent your next movie at the video store? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 14:57:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA04076 for dvd-discuss-outgoing; Wed, 5 Jul 2000 14:57:14 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA04073 for ; Wed, 5 Jul 2000 14:57:12 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA22410 for ; Wed, 5 Jul 2000 11:59:48 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma022059; Wed, 5 Jul 00 11:58:53 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA12310; Wed, 5 Jul 2000 12:58:52 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Declaration of Michael Shamos Date: Wed, 5 Jul 2000 13:01:43 -0600 Message-ID: <000501bfe6b3$75bb3200$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 > Seth David Schoen replied when: > John Galt writes: > > 14.5 Were you licensed to own said copy of the Matrix when you downloaded > > it? > > 14.5.a did you erase all extant copies of the Matrix when you were done? > > /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he > > just set himself up for the Big Hit--willful violation of the law as an > > officer of the court. If Shamos answers no on 14.5, Garbus oughta > > personally thank him for making the case. If Shamos answers yes, we > > still have no proven damage...*/ > > He could have had permission from the copyright holders, seeing as > he was _working for them_. Yes but aren't the plaintiffs arguing that circumvention itself is a violation of 1201 even if no copyright violation is involved? Thus Shamos could be accused of engaging in criminal activity -- unless of course he accedes to the opinion that DeCSS is not in fact "circumvention" but simple interoperability or player independence. > MPAA anti-piracy investigators, or anti-privacy investigators, and > contractors and consultants might well get unusual licenses to copy > major studios' motion pictures in the course of their work. It is > hard to imagine the studios suing them for their efforts! This highlights the foolishness of the argument that circumvention is criminal in the absence of copyright violation. Since, if true, not even those with explicit permission to circumvent can do so with violation of the law. How then would the MPAA anti-piracy team be able to test circumvention technologies? John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:00:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04195 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:00:19 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04192 for ; Wed, 5 Jul 2000 15:00:18 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id OAA04500 for ; Wed, 5 Jul 2000 14:03:09 -0500 (CDT) Message-ID: <39637990.D81D0163@uic.edu> Date: Wed, 05 Jul 2000 13:08:16 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] New way of phrasing? 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 > Also, where does the argument about copyright expiration come in? Ok. How about this. The defense could seek out and purchase as many DVDs as possible of public domain movies encrypted with CSS. Why would public domain material be encrypted with CSS? Because public domain material has no legal copyright protection, the only protection against copying would be CSS. For this reason, I strongly suspect that most DVDs containing public domain material will turn out to be CSS encrypted. This pile of public domain movies would demonstrate a substantial non-infringing use of DeCSS -- to remove the CSS encryption from public domain works distributed in the DVD format. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:01:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04260 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:01:20 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04256 for ; Wed, 5 Jul 2000 15:01:15 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139uSq-0001c3-00; Wed, 05 Jul 2000 12:04:04 -0700 Date: Wed, 5 Jul 2000 12:04:04 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos declaration Message-ID: <20000705120404.B9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <396372E5.B5DF5A40@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <396372E5.B5DF5A40@uic.edu>; from jms@uic.edu on Wed, Jul 05, 2000 at 12:39:49PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > (1) Was the copy of "The Matrix" that you received also created using > DeCSS? How can you tell, or why can't you tell? Could the DivX file > you received have been derived from anything except a DVD using > DeCSS? > > This is what the deposition implies but does not say -- that Mr Shamos > engaged in a reciprocal trade of works decoded via DeCSS. However, > the "Matrix" copy he received could have originated from any number of > sources -- a camcorder in a theatre, a video capture of a screener > tape, a video capture of a VHS tape, a video capture of a DVD, or > DeCSS. Or DoDsripper! I saw a #divx FAQ this morning which said that (in ripping DVDs) one could use DeCSS or DoD's ripper -- the latter preferred by the FAQ author. Of course, I think everyone has a free speech right to publish DoDsripper, too, but plaintiffs neglected to sue anyone over it, unless they are including DoDsripper in their broad definition of "DeCSS". -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:06:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04393 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:06:35 -0400 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04390 for ; Wed, 5 Jul 2000 15:06:30 -0400 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA02050 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 13:09:56 -0600 Date: Wed, 5 Jul 2000 13:09:55 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Ex Post Facto, was: Declaration of Michael Shamos Message-ID: <20000705130955.A1677@localhost> References: <20000705175751.5962.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705175751.5962.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Jul 05, 2000 at 10:57:51AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 10:57:51AM -0700, Bryan Taylor wrote: > > --- Chris Moseng wrote: > > > Unless someone has a good idea why it might, DeCSS cannot be said to > > circumvent in a technological sense--it is just as much a CSS > > counterpart as any other DVD player's descrambling function. The two > > processes are indistinguishable. Does DeCSS descramble CSS-treated > > movies in the same way as a common DVD player? Yes. End of story. > > A good way to make this point is by pointing out that Prof. Shamos used > DeCSS to decrypt Sleepless in Seatle with the authority of the > copyright owner, since they hired him precisely for this reason. His > access was not circumvention by any standard. > > Once the judge understands this, you can launch into the access with > the authority granted by the copyright licence (and copyright law in > general) for private home viewing. First sale authorizes access, > generally anyway. Any other scheme is misuse of copyright and/or misuse > of paracopyright. Does leasing a DVD with an encyclopedia on it to a library mean that the library needs separate authorization to access the disk after the copy is delivered? Lease is not first sale. Two categories of works: a. Those transmitted without _transfer_ of a copy. Authorization takes place no later than first sale. b. Those transmitted with the transfer of an authorized copy. Authorization takes place at publication. Without both rules, we get Ex post facto effects. If authorization is *truly* at the discretion of the copyright holder without bound, then authorization can be revoked at any point. This is contrary to "promote progress", contract law, common law. Examples: 1. Divx --- next June there will be central licensing facility. By P's reading --> no access to works. 2. DeCSS --- "for home use only". Oh wait a minute! We didn't mean it. Let's attach some more conditions. 3. Hypothetical: you can only buy CSS-2 enabled players. CSS-1 decoding is not available. Turn all the old CSS'ed DVDs you own into coasters. People don't buy blank books to read them, nor do they lease or borrow them for that purpose. The book is just a token for what is important -- the work. How much value would first-sale have if the work could only be accessed by the original purchaser? None. First sale was a sensible doctrine, associating both the copy and access to the work with the copy, but only so long as the work is only found in plain-text. I think your original example of "black boxes" is the only thing that makes sense for 1201(a). We need a fence around access control -- disembodied works and before first sale *only*. Those are the cases where electronic transmission of disembodied work makes the copies involved useless token to track the flow of commerce. I think the DMCA is intended to allow encrypted streaming content over the intenet on a pay-per-view or subscription basis. Something that would definately be covered would be a specialized device, such as a cable descrambler box that allowed non-paying customers access to material they had no right to view. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:09:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04444 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:09:53 -0400 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04441 for ; Wed, 5 Jul 2000 15:09:50 -0400 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA02058 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 13:13:21 -0600 Date: Wed, 5 Jul 2000 13:13:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Message-ID: <20000705131320.B1677@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705200129.A31927@inka.de>; from mail@risctaker.inka.de on Wed, Jul 05, 2000 at 08:01:29PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 08:01:29PM +0200, Sham Gardner wrote: > On Wed, Jul 05, 2000 at 11:57:12AM -0600, Paul Fenimore wrote: > > > Does there need to be a mechanism in place for accessing works once their > > > copyrights have expired? > > > > 1201(a)(1) would no longer apply because the work would be in public domain. > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > copyright --> no circumvention is possible. > > Hadn't we established that there are already public domain works published > on encrypted DVDs? My recollection is that all either include modern commentary (in which case one can argue about descrambling to get the P.D. segment, and that not being circumvention), or they had been colorized or otherwise cleaned up. The fact-status is not clear to me --- in no small measure because determining the copyright status of an old work that has been diddled is such a pain. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:13:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04498 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:13:37 -0400 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04495 for ; Wed, 5 Jul 2000 15:13:31 -0400 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA02066 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 13:16:27 -0600 Date: Wed, 5 Jul 2000 13:16:27 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000705131626.C1677@localhost> References: <20000704150037.H9454@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from galt@inconnu.isu.edu on Wed, Jul 05, 2000 at 12:22:54PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 12:22:54PM -0600, John Galt wrote: > > So having the case thrown out with predjudice is a loss? > > On Tue, 4 Jul 2000, Seth David Schoen wrote: > > > John Galt writes: > > > > > Okay, then there *still* is no proven damage from the 2600 posting of URLS > > > to get you to DeCSS. > > > > It would be a defeat if the outcome of this case included a right to > > link but no protection or very narrow protection for posting > > circumvention code. It would be a missed opportunity to get some constitutional review on this hideous law when the facts are very much against the P's. The case Seth was talking about pretty clearly excludes dismissed with predjudice. He's saying a win on "no harm" scale alone might establish a precedent that DeCSS-like programs are illegal. I don't see any way to tell LiViD from DeCSS on a functional basis, given the P's arguments. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:16:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04741 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:16:46 -0400 Received: from dial230.roadrunner.com (dial230.cybermesa.com [209.12.75.230] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04737 for ; Wed, 5 Jul 2000 15:16:42 -0400 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id NAA02074 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 13:20:05 -0600 Date: Wed, 5 Jul 2000 13:20:04 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705132004.D1677@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705113214.A9454@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705113214.A9454@zork.net>; from schoen@loyalty.org on Wed, Jul 05, 2000 at 11:32:14AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 11:32:14AM -0700, Seth David Schoen wrote: > Paul Fenimore writes: > > > > Also, where does the argument about copyright expiration come in? > > > > The technological measure doesn't go away when copyright expires. Take > > a look at Robert Thau's February postings on code-is-law. > > > > > > > Does there need to be a mechanism in place for accessing works once their > > > copyrights have expired? > > > > 1201(a)(1) would no longer apply because the work would be in public domain. > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > copyright --> no circumvention is possible. > > > > That would be a significant non-circumventing use for a descrambling device > > under (a)(2). > > Doesn't _that_ read the law out of existence? 95 years from now, perhaps. You may be pointing at a further structural code-is-law related flaw in the statute. > > Better plan on living a long time though, the Congress at > > the behest of their bosses in the MPAA is on the 20-year installment plan > > to unlimited copyright. > > Plaintiffs can simply argue that the expiration of copyright on DVDs > at some time in the future is not relevant because no copyrights are > ever going to expire, ever again. :-) :-) Made up Valenti "quote": And if we can't have that, we'll Amend the Constitution! He did say he wants copyright to last forever, less one day. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:18:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04829 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:18:43 -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 PAA04821 for ; Wed, 5 Jul 2000 15:18:40 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id PAA15528 for ; Wed, 5 Jul 2000 15:20:58 -0400 Date: Wed, 5 Jul 2000 15:20:57 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? In-Reply-To: <20000705131320.B1677@localhost> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'd kind of want to say that colorized or touched up works are not copyrightable. While there may have been some degree of creative or original work in them, it's not the intent and it's not the goal. I suppose that you _could_ have, for example, The Wizard of Oz in Color in Kansas and B&W in Oz to make a point, but that's becoming a significantly derivative work. Just messing about with the levels isn't enough IMHO, and I do that sort of thing with photos all the time. Perhaps it would be good to look at it from the other direction: Is a color work recopyrightable because it's converted to B&W? No, it's clearly not sufficiently different to warrant a new copyright. Additional material of course is a totally different matter, but this opens the door to legally deCSSing and copying etc much of the material, if not all. Or do access rights never expire, unlike the rest of copyrights? (after all, we're told that infringements have nothing to do with authorzation) On Wed, 5 Jul 2000, Paul Fenimore wrote: > On Wed, Jul 05, 2000 at 08:01:29PM +0200, Sham Gardner wrote: > > On Wed, Jul 05, 2000 at 11:57:12AM -0600, Paul Fenimore wrote: > > > > Does there need to be a mechanism in place for accessing works once their > > > > copyrights have expired? > > > > > > 1201(a)(1) would no longer apply because the work would be in public domain. > > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > > copyright --> no circumvention is possible. > > > > Hadn't we established that there are already public domain works published > > on encrypted DVDs? > > My recollection is that all either include modern commentary (in which > case one can argue about descrambling to get the P.D. segment, and that > not being circumvention), or they had been colorized or otherwise cleaned > up. > > The fact-status is not clear to me --- in no small measure because > determining the copyright status of an old work that has been > diddled is such a pain. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:19:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04928 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:19:58 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04925 for ; Wed, 5 Jul 2000 15:19:57 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id OAA07755 for ; Wed, 5 Jul 2000 14:22:48 -0500 (CDT) Message-ID: <39637E2B.EFBCB2A@uic.edu> Date: Wed, 05 Jul 2000 13:27:55 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? 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 >> Hadn't we established that there are already public domain works >> published on encrypted DVDs? > If there are, they might still contain new copyrighted material. I don't think this would matter. The non-infringing use of DeCSS on such a work would be the extraction of the public-domain portions of the work. As a matter of fact, this is yet another substantial non-infringing use of DeCSS -- to select and extract public-domain portions from a monolithic encrypted DVD. It is very common for a public domain work to be published along with a copyrighted work. For instance, I recently purchased and read a paperback of "The Jungle", by Upton Sinclair. The paperback included a copyrighted introductory essay, followed by the text of the public domain work. This essay not only adds additional value to the book "package", but also provides copyright protection for this particular edition of the work, when taken as a whole. This is good, common practice. However, it does not remove "The Jungle" from the public domain. If I were interested in, for instance, creating an electronic edition of "The Jungle", I could, completely legally, type in the book, omitting the copyrighted essay. Am I right on this? The DVD analogy would be a DVD containing the early films of D.W. Griffith. Such a DVD might easily include newly developed copyrighted material, including for instance historical essays, features on film restoration and preservation, a newly scored soundtrack, etc etc. However, the actual silent movies -- the heart of the work, would still be in the public domain, and a non-infringing use of DeCSS would be to separate the public domain portions from the copyrighted portions. As a matter of fact, by carefully selecting the exact start and end times of the rip, DeCSS could be used to seperate the public domain portions from the copyrighted portions without ever decrypting even a single frame of the copyrighted portions. In this case, there is absolutely no infringement of any kind. If DeCSS is ruled illegal for this use, then 1201 becomes a pretextual tool for "locking up" the public domain, by allowing a person to bundle a large amount of public domain material with a small amount of copyrighted material, and using encryption to convert the mix into an inseparable monolith. Hardly the intent of Congress. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:39:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05081 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:39:19 -0400 Received: from orange.fenimore.org (sf-du93.cybermesa.com [209.12.75.93]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05075 for ; Wed, 5 Jul 2000 15:38:55 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id NAA02229 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 13:42:17 -0600 Date: Wed, 5 Jul 2000 13:42:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705134216.A2102@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705113214.A9454@zork.net> <20000705132004.D1677@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705132004.D1677@localhost>; from fenimore@roadrunner.com on Wed, Jul 05, 2000 at 01:20:04PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 01:20:04PM -0600, Paul Fenimore wrote: > On Wed, Jul 05, 2000 at 11:32:14AM -0700, Seth David Schoen wrote: > > Paul Fenimore writes: > > > > > > Also, where does the argument about copyright expiration come in? > > > > > > The technological measure doesn't go away when copyright expires. Take > > > a look at Robert Thau's February postings on code-is-law. > > > > > > > > > > Does there need to be a mechanism in place for accessing works once their > > > > copyrights have expired? > > > > > > 1201(a)(1) would no longer apply because the work would be in public domain. > > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > > copyright --> no circumvention is possible. > > > > > > That would be a significant non-circumventing use for a descrambling device > > > under (a)(2). > > > > Doesn't _that_ read the law out of existence? > > 95 years from now, perhaps. You may be pointing at a further structural > code-is-law related flaw in the statute. Hold on. I'm saying that the copyright owner cannot be granted the right to control access after a work is fixed in an authorized copy, or after first sale (which ever happens first). A. If it's a CSS-like system, the authority fails, and possibly the "requires" test fails too (i.e. "effectively"). The distinguishing feature that Robert Thau is pointing to is a key separate from the copy of the work. B. Stolen disk example demolishes the authorization model in this case. (Perhaps the test of the key should be that it is separate and unique). 1. If it's an EBX-like (electronic book) public-key crypto system, then the copyright owner can still pull ex post facto tricks and revoke authority to access at any point they please. That would leave crypto as an effective access control mechanism if it was employed during transmission only. The new transmission protocol might be different, so my reading would only destroy the statute if the unknown fact-situtation in 95+ years was that people used the same *transmission* security at that time. One couldn't start intercepting 94 year-old transmission at that point. This is unlike the stored-data situation, where allowing products or devices that descramble 95 year-old works might allow circumvention of 94 year-old works. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 15:57:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05781 for dvd-discuss-outgoing; Wed, 5 Jul 2000 15:57:55 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05778 for ; Wed, 5 Jul 2000 15:57:54 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id PAA14400 for ; Wed, 5 Jul 2000 15:00:41 -0500 (CDT) Message-ID: <3963870B.A6D19F67@uic.edu> Date: Wed, 05 Jul 2000 14:05:48 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Is CSS itself "misuse of copyright"? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is from the RIAA vs Napster lawsuit. In the latest round in this battle, Quoting from: OPPOSITION OF DEFENDANT NAPSTER, INC. TO PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION here: http://dl.napster.com/opposition.pdf > The Ninth Circuit has held that attempts such > as Plaintiffs to use the limited monopoly > rights bestowed on a copyright holder to > control competition in an area outside the scope > of the copyright constitutes copyright misuse, > an affirmative defense that bars the copyright holder > from enforcing its copyright unless and until its > misuse is cured. Practice Management Info. > Corp. v. American Medical Assn., 121 F.3d 516, 521 > (9th Cir. 1997), as amended 133 F.3d 1140 > (9th Cir. 1998); see also Alcatel USA v. DGI Tech., > 166 F.3d 772 (5th Cir. 1999); QAD, Inc. v. > ALN Assocs., Inc., 770 F. Supp. 1261, 1266-1270 > (N.D.Ill. 1991) (copyright misuse may be found > based on attempts to use legal proceedings to > extend a copyright improperly), affd, 974 F.2d 834 > (7th Cir. 1992). The Ninth Circuit takes a broad view > of misuse under which copyrights may not be enforced > if they are being used in any manner that impedes the  > copyright system's goal of promoting the arts and > sciences by granting temporary monopolies to > copyright holders.Practice Management, 121 F.3d > at 518, 521. I find this very interesting because I don't think that the plaintiffs have even considered this. They are extremely bold in asserting that they have the right to deny fair use of their copyrighted materials by technological means, and have as much as admitted tying DVDs to licensed players. They appear to be making no effort whatsoever to defend themselves against charges of copyright misuse. As a matter of fact, they are practically making the case for it in declaration after declaration. If this doctrine can be applied here, then the MPAA may have already backed themselves into a corner from which they cannot extricate themselves. How about this theory. The use of CSS itself constitutes copyright misuse, because it uses non-copyright law -- the DMCA (which I believe both sides concede is paracopyright law, not copyright law), pretextually to both control the DVD player market, and also to nullify the fair use provisions of copyright law. Accordingly, plaintiffs should be barred from enforcing copyrights on all CSS encrypted DVDs until they publically make available a method of decrypting DVDs for fair use purposes, and publish a specification allowing the production of players with CSS forbidden desirable consumer features like digital output, and the ability to skip any part of the DVD. If nothing else, the danger of their losing the ability to enforce their copyrights might well make them blink. If nothing else, it certainly increases the risk on their part in undertaking this lawsuit and the danger in their pursuing it. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:01:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05902 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:01:12 -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 QAA05876 for ; Wed, 5 Jul 2000 16:01:04 -0400 Message-ID: <20000705200320.24836.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 05 Jul 2000 13:03:20 PDT Date: Wed, 5 Jul 2000 13:03:20 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan on Junger 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 p46-47 of the most recent transcript, Kaplan commented on the Junger decision as quoted below. This guy just doesn't get it. His balancing theory is flat out wrong statuorily [ 1203(b)(1) ] even without a Constitutional arguement [which is also wrong]. He applies copyright justifications to paracopyright that Congress and Constitution forbid him to do. He wants to apply the balance tests "securing protection for copyright" where fair use says there are none. We've got to clobber this maverick judge with 1203(b)(1). Congress forbid him to enjoin speech. PERIOD. ****THE BALANCING IS DONE***** His convoluted Constitutional theories are irrelevent -- his job is to interpret a law that says in clear English NO PRIOR RESDTRAINT. http://cryptome.org/mpaa-v-2600-hs4.htm _________________ [Kaplan:] What the Younger [sic] decision in the sixth circuit said was that in their view computer source code is expressive and is entitled to First Amendment protection and it therefore sent back to the District Court a challenge to the export control regulation so that the District Court could draw an appropriate balance between the First Amendment interests in exporting the software, the source code at issue and the national security issues. With all due respect, that is substantially what I said in my decision. I assumed for the purpose of argument that source code had Constitutional protection and that to balance it against the legitimate interests in securing protection for copyright. To suggest that Younger eliminated the basis for the previous decision, which is obviously a relevant case, is simply a non-starter and yet the argument gets asserted. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:12:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06257 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:12:21 -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 QAA06228 for ; Wed, 5 Jul 2000 16:12:15 -0400 Received: from ip59.bedford9.ma.pub-ip.psi.net ([38.32.79.59]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 139vZW-0002LR-00 for dvd-discuss@eon.law.harvard.edu; Wed, 05 Jul 2000 16:15:03 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Date: Wed, 05 Jul 2000 16:08:57 -0400 Message-ID: <5557ms49a4mhvsl7ncha29n5q9uv9aj8nq@4ax.com> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> <20000705131320.B1677@localhost> In-Reply-To: <20000705131320.B1677@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 QAA06255 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 5 Jul 2000 13:13:21 -0600, Paul Fenimore wrote: >My recollection is that all either include modern commentary (in which >case one can argue about descrambling to get the P.D. segment, and that >not being circumvention), or they had been colorized or otherwise cleaned >up. > >The fact-status is not clear to me --- in no small measure because >determining the copyright status of an old work that has been >diddled is such a pain. > [back from long weekend..] I'd add that in the case of Dr. Caligari, the publisher claims it was made from a 1923 copy of the original film--a copy that had plain English titles in place of the original graphic German ones. (I think 1923 is still protected by the Bono act for another twenty years or so.) Trying to find a DVD that was taken from an original PD source might be futile. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:19:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06414 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:19:42 -0400 Received: from dial101.roadrunner.com (dial101.cybermesa.com [209.12.75.101] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06411 for ; Wed, 5 Jul 2000 16:19:39 -0400 Received: (from paul@localhost) by dial101.roadrunner.com (8.8.7/8.8.7) id OAA02750 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 14:23:11 -0600 Date: Wed, 5 Jul 2000 14:23:10 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Two kinds of access and 1201(a) vs. 1201(b) Message-ID: <20000705142309.A2609@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 Schumann deposition, p. 86: 13 Q. I want to know all the different 14 things that are on a DVD that protect, access, or 15 protect playing or protect copying, and I use 16 copying and accessing together. You have to get 17 access to copy. One must have infringement-access to copy. 1201-access has nothing to do with copying. The reason this is so: the statute talks about access to _a_ work. But there are two "works", the plain-text and the cipher-text. Example: 1. Copy the encrypted VOB and IFO files to a new DVD, but not the disk-key block. No violation of 1201(a) has occurred. A violation of 106(1) might have occurred. 2. *Sell* the new, unauthorized DVD to someone. No circumvention violation occurs. A 106(1) violation has. 3. The new person makes a known-plaintext attack on the cipher, and deciphers the movie. A violation of 1201(a) occurs, at least according to the P's. By causality, it is impossible for 1201-access to be necessary to make a copy. The copy happened first, the 1201-access second. This is why it is so important to realize that there are two works: the plain-text and the cipher-text. Copy a ciphertext is possible without access to the plaintext. Cryptography is not copy protection. It is privacy. Assuming you keep the key secret. This is also one of the reasons why 1201(a) and 1201(b) do not overlap. The initial filing by P's in SDNY only talk about copying and piracy. That can happen before 1201-access. By causality, what comes after (access) does not physically prevent what comes before (copying). P's talk about copying in their filings. If P's filings have something to do with 1201, it has to be 1201(b). It cannot be 1201(a). These filing have been amended to eliminate some problems, but not all. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:22:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06460 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:22:15 -0400 Received: from dial101.roadrunner.com (dial101.cybermesa.com [209.12.75.101] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06457 for ; Wed, 5 Jul 2000 16:22:13 -0400 Received: (from paul@localhost) by dial101.roadrunner.com (8.8.7/8.8.7) id OAA02772 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 14:25:42 -0600 Date: Wed, 5 Jul 2000 14:25:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Message-ID: <20000705142541.A2761@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> <20000705131320.B1677@localhost> <5557ms49a4mhvsl7ncha29n5q9uv9aj8nq@4ax.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5557ms49a4mhvsl7ncha29n5q9uv9aj8nq@4ax.com>; from rongus@tiac.net on Wed, Jul 05, 2000 at 04:08:57PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 04:08:57PM -0400, Ron Gustavson wrote: > On Wed, 5 Jul 2000 13:13:21 -0600, Paul Fenimore wrote: > > >My recollection is that all either include modern commentary (in which > >case one can argue about descrambling to get the P.D. segment, and that > >not being circumvention), or they had been colorized or otherwise cleaned > >up. > > > >The fact-status is not clear to me --- in no small measure because > >determining the copyright status of an old work that has been > >diddled is such a pain. > > > [back from long weekend..] > I'd add that in the case of Dr. Caligari, the publisher claims it was made > from a 1923 copy of the original film--a copy that had plain English titles > in place of the original graphic German ones. (I think 1923 is still > protected by the Bono act for another twenty years or so.) Trying to > find a DVD that was taken from an original PD source might be futile. It doesn't matter what year the copy was made. It matters what year the _work_ came into being. If the work on the copy dates from < 1923 then it is in the public domain. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:37:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06671 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:37:57 -0400 Received: from dial210.roadrunner.com (dial210.cybermesa.com [209.12.75.210] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06668 for ; Wed, 5 Jul 2000 16:37:54 -0400 Received: (from paul@localhost) by dial210.roadrunner.com (8.8.7/8.8.7) id OAA02936 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 14:41:26 -0600 Date: Wed, 5 Jul 2000 14:41:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Message-ID: <20000705144125.A2789@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> <20000705131320.B1677@localhost> <5557ms49a4mhvsl7ncha29n5q9uv9aj8nq@4ax.com> <20000705142541.A2761@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705142541.A2761@localhost>; from fenimore@roadrunner.com on Wed, Jul 05, 2000 at 02:25:42PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 02:25:42PM -0600, Paul Fenimore wrote: > On Wed, Jul 05, 2000 at 04:08:57PM -0400, Ron Gustavson wrote: > > On Wed, 5 Jul 2000 13:13:21 -0600, Paul Fenimore > > wrote: > > > > >My recollection is that all either include modern commentary (in which > > >case one can argue about descrambling to get the P.D. segment, and that > > >not being circumvention), or they had been colorized or otherwise cleaned > > >up. > > > > > >The fact-status is not clear to me --- in no small measure because > > >determining the copyright status of an old work that has been > > >diddled is such a pain. > > > > > [back from long weekend..] > > I'd add that in the case of Dr. Caligari, the publisher claims it was made > > from a 1923 copy of the original film--a copy that had plain English titles > > in place of the original graphic German ones. (I think 1923 is still > > protected by the Bono act for another twenty years or so.) Trying to > > find a DVD that was taken from an original PD source might be futile. > > It doesn't matter what year the copy was made. It matters what year > the _work_ came into being. If the work on the copy dates from < 1923 > then it is in the public domain. 17 U.S.C. 102: Sec. 102. Subject matter of copyright: In general * (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of ^^^^^ expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: + (1) literary works; + (2) musical works, including any accompanying words; + (3) dramatic works, including any accompanying music; + (4) pantomimes and choreographic works; + (5) pictorial, graphic, and sculptural works; + (6) motion pictures and other audiovisual works; + (7) sound recordings; and (8) architectural works. * (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. That's a problem as far as determining status. The copy one looks at might be much younger than the work. Then add on derivative status. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:45:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06800 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:45:00 -0400 Received: from dial210.roadrunner.com (dial210.cybermesa.com [209.12.75.210] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06797 for ; Wed, 5 Jul 2000 16:44:57 -0400 Received: (from paul@localhost) by dial210.roadrunner.com (8.8.7/8.8.7) id OAA02953 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 14:48:24 -0600 Date: Wed, 5 Jul 2000 14:48:23 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705144823.B2789@localhost> References: <39637E2B.EFBCB2A@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39637E2B.EFBCB2A@uic.edu>; from jms@uic.edu on Wed, Jul 05, 2000 at 01:27:55PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 01:27:55PM -0500, John Schulien wrote: > > >> Hadn't we established that there are already public domain works > >> published on encrypted DVDs? > > If there are, they might still contain new copyrighted material. > > I don't think this would matter. The non-infringing use of DeCSS on > such > a work would be the extraction of the public-domain portions of the > work. > > As a matter of fact, this is yet another substantial non-infringing use > of > DeCSS -- to select and extract public-domain portions from a monolithic > encrypted DVD. > > It is very common for a public domain work to be published along with a > copyrighted work. For instance, I recently purchased and read a > paperback of "The Jungle", by Upton Sinclair. The paperback included > a copyrighted introductory essay, followed by the text of the public > domain work. This essay not only adds additional value to the book > "package", but also provides copyright protection for this particular > edition of the work, when taken as a whole. This is good, common > practice. However, it does not remove "The Jungle" from the public > domain. > > If I were interested in, for instance, creating an electronic edition of > > "The Jungle", I could, completely legally, type in the book, omitting > the copyrighted essay. Am I right on this? I believe so. The modern edition is a compilation of the public domain work, and the new preface. The preface gets its own copyright. Mere association does not confer copyright on the old work. 17 U.S.C. 103: Sec. 103. Subject matter of copyright: Compilations and derivative works * (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. * (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. > The DVD analogy would be a DVD containing the early films of D.W. > Griffith. > Such a DVD might easily include newly developed copyrighted material, > including for instance historical essays, features on film restoration > and > preservation, a newly scored soundtrack, etc etc. However, the actual > silent movies -- the heart of the work, would still be in the public > domain, > and a non-infringing use of DeCSS would be to separate the public domain > > portions from the copyrighted portions. The real question is whether the old work has been diddled to make a derivative work. Then the question is if the original can be generated from the derivative. > As a matter of fact, by carefully selecting the exact start and end > times > of the rip, DeCSS could be used to seperate the public domain portions > from the copyrighted portions without ever decrypting even a single > frame > of the copyrighted portions. In this case, there is absolutely no > infringement of any kind. > > If DeCSS is ruled illegal for this use, then 1201 becomes a pretextual > tool for "locking up" the public domain, by allowing a person to bundle > a large amount of public domain material with a small amount of > copyrighted material, and using encryption to convert the mix into an > inseparable monolith. > > Hardly the intent of Congress. After the Bono term extension act, I'm not so sure. Good thing the public domain is has constitutional dimensions. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 16:53:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06938 for dvd-discuss-outgoing; Wed, 5 Jul 2000 16:53:57 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06935 for ; Wed, 5 Jul 2000 16:53:55 -0400 Received: from 209-122-203-91.s345.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.91] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 139wDu-0005Ee-00 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 16:56:46 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Date: Wed, 5 Jul 2000 16:50:46 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <20000705142541.A2761@localhost> MIME-Version: 1.0 Message-Id: <00070516554000.09293@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 05 Jul 2000, you wrote: > On Wed, Jul 05, 2000 at 04:08:57PM -0400, Ron Gustavson wrote: > > I'd add that in the case of Dr. Caligari, the publisher claims it was made > > from a 1923 copy of the original film--a copy that had plain English titles > > in place of the original graphic German ones. (I think 1923 is still > > protected by the Bono act for another twenty years or so.) Trying to > > find a DVD that was taken from an original PD source might be futile. > > It doesn't matter what year the copy was made. It matters what year > the _work_ came into being. If the work on the copy dates from < 1923 > then it is in the public domain. > > > Paul Fenimore Info on "The Cabinet of Dr. Caligari" from amazon.com: Release Information: Studio: Image Entertainment Theatrical Release Date: March 19, 1921 DVD Release Date: July 21, 1998 Run Time: 52 minutes Production Company: Image Entertainment Package Type: Snap Case Aspect Ratio(s): Full Screen (Standard) - 1.33:1 Discographic Information: DVD Encoding: Region All Regions Layers: Single Available Audio Tracks: English (Dolby Digital 2.0) Available subtitles: - Edition Details: * Region 1 encoding (US and Canada only) * Black & White, Color * Commentary by film scholar Mike Budd * and an excerpt from Genuine (1920) aka "Genuine: A Tale of a Vampire" * ASIN: 6305075492 Note that the soundtrack is probably a new performance... Also note that it is region encoded to protect the theatrical release... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:04:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07289 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:04:49 -0400 Received: from dial115.roadrunner.com (dial115.cybermesa.com [209.12.75.115] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07286 for ; Wed, 5 Jul 2000 17:04:46 -0400 Received: (from paul@localhost) by dial115.roadrunner.com (8.8.7/8.8.7) id PAA03151 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 15:08:18 -0600 Date: Wed, 5 Jul 2000 15:08:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on Junger Message-ID: <20000705150817.A2967@localhost> References: <20000705200320.24836.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705200320.24836.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Jul 05, 2000 at 01:03:20PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Neither Kaplan's order nor his memorandum mentions 1203. He's not acting like he even know 1203 exists. Perhaps he simply doesn't know there is a statutory prohibition on prior restraint in title 17 chapter 12 cases. The order: The memorandum: On Wed, Jul 05, 2000 at 01:03:20PM -0700, Bryan Taylor wrote: > On p46-47 of the most recent transcript, Kaplan commented on the Junger > decision as quoted below. This guy just doesn't get it. His balancing > theory is flat out wrong statuorily [ 1203(b)(1) ] even without a > Constitutional arguement [which is also wrong]. He applies copyright > justifications to paracopyright that Congress and Constitution forbid > him to do. > > He wants to apply the balance tests "securing protection for copyright" > where fair use says there are none. > > We've got to clobber this maverick judge with 1203(b)(1). Congress > forbid him to enjoin speech. PERIOD. ****THE BALANCING IS DONE***** His > convoluted Constitutional theories are irrelevent -- his job is to > interpret a law that says in clear English NO PRIOR RESDTRAINT. > > http://cryptome.org/mpaa-v-2600-hs4.htm > _________________ > > [Kaplan:] What the Younger [sic] decision in the sixth circuit said > was that in their view computer source code is expressive and > is entitled to First Amendment protection and it therefore > sent back to the District Court a challenge to the export > control regulation so that the District Court could draw an > appropriate balance between the First Amendment interests in > exporting the software, the source code at issue and the > national security issues. > With all due respect, that is substantially what I > said in my decision. I assumed for the purpose of argument > that source code had Constitutional protection and that to > balance it against the legitimate interests in securing > protection for copyright. To suggest that Younger eliminated > the basis for the previous decision, which is obviously a > relevant case, is simply a non-starter and yet the argument > gets asserted. I think a significant part of Kaplan's confusion here that he doesn't distinguish between 1201-access and infringement-access. He thinks he's balancing the copyright owner's interest in exclusive rights. This is an (a) suit, so we are not talking exclusive rights. Even if 1203 didn't exist, his theory would be baloney. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:16:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07511 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:16:30 -0400 Received: from dial115.roadrunner.com (dial115.cybermesa.com [209.12.75.115] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA07508 for ; Wed, 5 Jul 2000 17:16:27 -0400 Received: (from paul@localhost) by dial115.roadrunner.com (8.8.7/8.8.7) id PAA03229 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 15:19:59 -0600 Date: Wed, 5 Jul 2000 15:19:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Message-ID: <20000705151958.A3181@localhost> References: <20000705142541.A2761@localhost> <00070516554000.09293@yuggoth> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00070516554000.09293@yuggoth>; from jeremy@gmu.edu on Wed, Jul 05, 2000 at 04:50:46PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It is believed that Dr. Caligari's Cabinet is CSS'ed: On Wed, Jul 05, 2000 at 04:50:46PM -0400, Jeremy Erwin wrote: > Info on "The Cabinet of Dr. Caligari" from amazon.com: > Release Information: > Studio: Image Entertainment > Theatrical Release Date: March 19, 1921 > DVD Release Date: July 21, 1998 > Run Time: 52 minutes > Production Company: Image Entertainment > Package Type: Snap Case > > Aspect Ratio(s): > > Full Screen (Standard) - 1.33:1 > > Discographic Information: > DVD Encoding: Region All Regions > Layers: Single > Available Audio Tracks: English (Dolby Digital 2.0) > Available subtitles: - > > Edition Details: > * Region 1 encoding (US and Canada only) > * Black & White, Color > * Commentary by film scholar Mike Budd > * and an excerpt from Genuine (1920) aka "Genuine: A Tale of a Vampire" > * ASIN: 6305075492 > > Note that the soundtrack is probably a new performance... Also note that it is > region encoded to protect the theatrical release... More public domain material: : http://www.bigstar.com/search/index.cfm/?fa=qt&sst=t&fmt=DVD&url_stuff=36ba9ebg227c3ccg1&reflg=1&rel=1910 gives the results: Broken Blossoms (1919) The Cabinet of Dr. Caligari (1919) Daddy-Long-Legs (1919) Felix the Cat - Felix! (1919) Male and Female (1919) The Spiders (1919) Laurel and Hardy: The Lost Films of Laurel and Hardy Vol. 1 (1918-1929) Chaplin - The First National Shorts (1918-1923) The Kid/A Dog's Life (1918, 1921) Amarilly of Clothes-Line Alley (1918) Stella Maris (1918) Seven Chances (1917-25) Chaplin at Mutual Studios 1 (1917) 20,000 Leagues Under the Sea (1916) Chaplin at Mutual Studios 2 (1916) Chaplin at Mutual Studios 3 (1916) Intolerance (1916) Birth of a Nation (1915) Birth Of A Nation/Birth Of A Race (1915) Chaplin's Essanay Comedies - Volume One (1915) Chaplin's Essanay Comedies - Volume Three (1915) Chaplin's Essanay Comedies - Volume Two (1915) The Lamb (1915) Chaplin Marathon (1914-1917) Collector's Choice Double Feature: Charlie Chaplin (1914-18) Tillie's Punctured Romance (1914) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:28:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07702 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:28:44 -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 RAA07699 for ; Wed, 5 Jul 2000 17:28:43 -0400 Received: from ip59.bedford9.ma.pub-ip.psi.net ([38.32.79.59]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 139wla-0002Xb-00 for dvd-discuss@eon.law.harvard.edu; Wed, 05 Jul 2000 17:31:35 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Date: Wed, 05 Jul 2000 17:25:34 -0400 Message-ID: <7i97mscti4oea3imeorvurqkdp7os627u2@4ax.com> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> <20000705131320.B1677@localhost> <5557ms49a4mhvsl7ncha29n5q9uv9aj8nq@4ax.com> <20000705142541.A2761@localhost> In-Reply-To: <20000705142541.A2761@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 RAA07700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 5 Jul 2000 14:25:42 -0600, Paul Fenimore wrote: >It doesn't matter what year the copy was made. It matters what year >the _work_ came into being. If the work on the copy dates from < 1923 >then it is in the public domain. It seems like they shouldn't be able to remove works from the PD with just minor tweaks. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:31:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07833 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:31:39 -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 RAA07830 for ; Wed, 5 Jul 2000 17:31:38 -0400 Message-ID: <20000705213359.7935.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Wed, 05 Jul 2000 14:33:59 PDT Date: Wed, 5 Jul 2000 14:33:59 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Kaplan on Junger 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: > Neither Kaplan's order nor his memorandum mentions 1203. He's not > acting like he even know 1203 exists. Perhaps he simply doesn't > know there is a statutory prohibition on prior restraint in > title 17 chapter 12 cases. Assuming that we submit an amicus brief for the trial (which we ought to start working on), I think 1203(b)(1) + Junger should be a major component of it. It would also be a good idea to recruit some law professor types write 1 pagers on this point. Kaplan clearly doesn't get it. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:31:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA07845 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:31:58 -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 RAA07842 for ; Wed, 5 Jul 2000 17:31:56 -0400 Received: from ip59.bedford9.ma.pub-ip.psi.net ([38.32.79.59]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 139woh-0002aO-00 for dvd-discuss@eon.law.harvard.edu; Wed, 05 Jul 2000 17:34:47 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? Date: Wed, 05 Jul 2000 17:28:47 -0400 Message-ID: References: <20000705142541.A2761@localhost> <00070516554000.09293@yuggoth> <20000705151958.A3181@localhost> In-Reply-To: <20000705151958.A3181@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 RAA07843 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 5 Jul 2000 15:19:58 -0600, Paul Fenimore wrote: >It is believed that Dr. Caligari's Cabinet is CSS'ed: > > I can't copy the VOBs without using DeCSS. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 17:51:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08060 for dvd-discuss-outgoing; Wed, 5 Jul 2000 17:51:06 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA08057 for ; Wed, 5 Jul 2000 17:51:05 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA31137; Wed, 5 Jul 2000 17:54:36 -0400 Message-ID: <3963AE9C.2A6C73D2@mit.edu> Date: Wed, 05 Jul 2000 17:54:36 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <20000705175751.5962.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: > > --- Chris Moseng wrote: > > > Unless someone has a good idea why it might, DeCSS cannot be said to > > circumvent in a technological sense--it is just as much a CSS > > counterpart as any other DVD player's descrambling function. The two > > processes are indistinguishable. Does DeCSS descramble CSS-treated > > movies in the same way as a common DVD player? Yes. End of story. > > A good way to make this point is by pointing out that Prof. Shamos used > DeCSS to decrypt Sleepless in Seatle with the authority of the > copyright owner, since they hired him precisely for this reason. His > access was not circumvention by any standard. > > Once the judge understands this, you can launch into the access with > the authority granted by the copyright licence (and copyright law in > general) for private home viewing. First sale authorizes access, > generally anyway. Any other scheme is misuse of copyright and/or misuse > of paracopyright. > I think the MPAA would agree that Prof. Shamos did not circumvent CSS. They will simply argue that Prof. Shamos's non-circumventing use of DeCSS (to gather evidence for a court case about DeCSS) is not a commercially significant use of DeCSS, so it should not stand in the way of DeCSS being banned. More generally, they will argue that in the absence of court cases about DeCSS copyright holders have no commercially significant reason to give third parties the authority to descramble works with DeCSS. One counter to this is Philip Franklin's message from 3/26/00: http://eon.law.harvard.edu/archive/dvd-discuss/msg01862.html That message describes the stock movie and video clip industry and gives a commercially significant reason some copyright holder might want to give third parties the authority to descramble some works: it can lower the cost and improve the quality of stock clips, increasing the profit for the copyright holder. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 18:00:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08202 for dvd-discuss-outgoing; Wed, 5 Jul 2000 18:00:38 -0400 Received: from ts0210.bates.edu (root@ts0202.bates.edu [134.181.72.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA08199 for ; Wed, 5 Jul 2000 18:00:35 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id SAA00915 for ; Wed, 5 Jul 2000 18:06:47 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Wed, 5 Jul 2000 18:06:45 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Ex Post Facto, was: Declaration of Michael Shamos In-Reply-To: <20000705130955.A1677@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Wed, 5 Jul 2000, Paul Fenimore wrote: > > > > I think the DMCA is intended to allow encrypted streaming content over > the intenet on a pay-per-view or subscription basis. Something that > would definately be covered would be a specialized device, such as a > cable descrambler box that allowed non-paying customers access to > material they had no right to view. > More generally, I think the DMCA can have use when the key and the ciphertext are distributed seperately (solving the "privacy problem" you have refered to). This allows the content owner to freely distribute the ciphertext, but charge for the key, and would make decryption w/o the key illegal. This is exacltly analagous to sattelite television, where the EM waves are free, but the authorization to use them is not. This would be a different case (and one I wouldn't feel as bad about) if the MPAA were giving DVD's out in the streets, and just charging for players. This is the same model. It's when they want to have their cake and eat it too that the trouble arises. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5Y7+Ht+kM0Mq9M/wRAnu7AJ9CeKP/pbsHVcusUFEfBltaj7UNPgCfW4lP 8pWmVvNr4Rb2Ju/AcWpE4fs= =HK9O -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 18:03:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA08370 for dvd-discuss-outgoing; Wed, 5 Jul 2000 18:03:36 -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 SAA08367 for ; Wed, 5 Jul 2000 18:03:35 -0400 Received: from travel-net.com (trj65.travel-net.com [207.176.160.65]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id RAA20728 for ; Wed, 5 Jul 2000 17:03:41 -0400 Message-ID: <3963B11E.7BCDF58D@travel-net.com> Date: Wed, 05 Jul 2000 18:05:18 -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] Kaplan on Junger References: <20000705213359.7935.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 Ummmmm if a judge doesnt get it, in my experience it usually means either: a) judge chooses to *not' get it cause they really dont want to go down that particular road in trial for whatever reasons they have. In this case theres nothing to be done but properly document for appeal purposes. error in law is usually a pretty good grounds for appeal in most jurisdictions (yer mileage may vary) b) judge really doesnt get it and you have to find a way to let the judge discover the law for themselves without hitting them on the head with it to embarrass them c) judge wants to reserve judgement on everything until the trial cause they hate injunctive relief in general and realllllly realllly dont want to find out at trial that either the injunction granted wasnt warranted or injunction denied really had merit. d) some combination of the above... Now, figure out what the current situation is and that governs what type of brief(s) to file. Bryan Taylor wrote: > > --- Paul Fenimore wrote: > > Neither Kaplan's order nor his memorandum mentions 1203. He's not > > acting like he even know 1203 exists. Perhaps he simply doesn't > > know there is a statutory prohibition on prior restraint in > > title 17 chapter 12 cases. > > Assuming that we submit an amicus brief for the trial (which we ought > to start working on), I think 1203(b)(1) + Junger should be a major > component of it. It would also be a good idea to recruit some law > professor types write 1 pagers on this point. Kaplan clearly doesn't > get it. > > __________________________________________________ > Do You Yahoo!? > Send instant messages & get email alerts 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 Wed Jul 5 19:41:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09143 for dvd-discuss-outgoing; Wed, 5 Jul 2000 19:41:17 -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 TAA09140 for ; Wed, 5 Jul 2000 19:41:16 -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 TAA15079 for ; Wed, 5 Jul 2000 19:44:08 -0400 (EDT) Message-Id: <4.2.2.20000705155925.02258200@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 05 Jul 2000 19:44:05 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Public domain In-Reply-To: References: <20000705131320.B1677@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 Among the exclusive rights of the copyright holder, it's not only public domain and expiration of time, but also ideas, factual, or functional elements, and once again, fair use, that copyright does not protect. If access control is a way of shoring up exclusive rights, getting at any of these things is "substantial noninfringing use" of DeCSS. Devil's advocate response: Access control is not copyright control, so you need substantial non-circumventing use rather than substantial noninfringing use. No publisher has the obligation to make any portion of a work available to you. Just because the Constitution isn't under copyright doesn't mean I can't lock my copy of it behind access and copy controls or limit the manner in which you view it. That the New York Times prints facts doesn't mean it has to give away its papers. While copyright law doesn't protect those elements, netiher does it bar other (physical or technological) protections for them. In other words, if you have 1201 access to a work, you are free to extract facts, public domain materials, and functional elements; if you don't have 1201 access, you're out of luck. Where the devil's argument goes off track is in failing to translate the balance of copyright to new technologies. When there were no technologies for fine-grained access controls, there was no need for mandatory access grants. Publishing was all-or-nothing. Authors could set the price of copies of a work (including at infinity, keeping the work unpublished), but could not control these extra uses once the copies left their hands. The author or publisher got his economic incentive and protection; the public got its facts, functions, fair use, and ultimately expired copyright ("fair use content"). Now that technology permits persistent control, fair use principles must be stepped up, in common law as all fair use was pre-1978 if not yet in statute, to preserve public access. Courts have already recognized this necessity when the "protection" comes from the entombing of fair use content in compiled code or hardware. Sony v. Connectix and Sega v. Accolade both justify intermediate copying of works -- infringement -- to enable the public to access their non-copyrightable functions. The same result should follow where this public access to fair use content is hindered not by a need to infringe copyright but by a need to bypass an access control. The constitutional mandate of fair use must adapt to meet the new controls. The law still does not force access, but it does not favor "privacation" with the protections of copyright. (You may still have copyright in an unpublished work (copyright+access control - economic incentive), but not in halfway publication (copyright+access control+economic incentive) -- you can only take 2 of 3). From another angle: Betamax takes the idea of substantial noninfringing use from patent law. Both copyright and patent come from the constitutional mandate to "promote the progress of science and the useful arts." Can we make the further patent argument that fair use/facts/function disclosure is the necessary counterpart to copyright protection that enabling disclosure is to patent? Perhaps the law permits plaintiffs to choose between publication, with its strong but contained copyright protection, and trade secret, with its broader coverage but strict waiver provisions. Attempt to grab both under the guise of copyright is a copyright misuse. --Wendy (copyright story only tangentially related to the messages to which I was planning to respond...) > > > On Wed, Jul 05, 2000 at 11:57:12AM -0600, Paul Fenimore wrote: > > > > > Does there need to be a mechanism in place for accessing works > once their > > > > > copyrights have expired? > > > > > > > > 1201(a)(1) would no longer apply because the work would be in > public domain. > > > > (a)(3)(B) says "copyright owner". (a)(1)(A) says "under this title". No > > > > copyright --> no circumvention is possible. > > > 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 Wed Jul 5 19:56:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09360 for dvd-discuss-outgoing; Wed, 5 Jul 2000 19:56:11 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA09357 for ; Wed, 5 Jul 2000 19:56:10 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 139z4H-0002fo-00; Wed, 05 Jul 2000 16:59:01 -0700 Date: Wed, 5 Jul 2000 16:59:01 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on Junger Message-ID: <20000705165901.E9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000705213359.7935.qmail@web515.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000705213359.7935.qmail@web515.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Jul 05, 2000 at 02:33:59PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- Paul Fenimore wrote: > > Neither Kaplan's order nor his memorandum mentions 1203. He's not > > acting like he even know 1203 exists. Perhaps he simply doesn't > > know there is a statutory prohibition on prior restraint in > > title 17 chapter 12 cases. > > Assuming that we submit an amicus brief for the trial (which we ought > to start working on), I think 1203(b)(1) + Junger should be a major > component of it. It would also be a good idea to recruit some law > professor types write 1 pagers on this point. Like, say, Professor Junger? :-) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 20:00:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09457 for dvd-discuss-outgoing; Wed, 5 Jul 2000 20:00:03 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA09454 for ; Wed, 5 Jul 2000 20:00:02 -0400 Received: from hoth (user-2inib0f.dsl.mindspring.com [165.121.44.15]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA21558 for ; Wed, 5 Jul 2000 17:02:48 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] New way of phrasing? Date: Wed, 5 Jul 2000 17:02:39 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <20000705115712.C1226@localhost> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 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 Paul Fenimore Sent: Wednesday, July 05, 2000 10:57 AM >"Decryption" != circumvention. The law makes circumvention illegal, >not decryption. True. The key point is that the copyright information is removed as a byproduct of the decryption process. It's the encryption that controls access to the protected work (by establishing that it's protected). By removing the encryption, one circumvents the access control. So the question is, is circumvention the goal? In the case of DMCA it comes down to whether DeCSS is "primarily designed or produced for the purpose of circumventing protection." If you argue that DeCSS can legitimately be used as a device for playing movies (on behalf of an owner of a disc), then DMCA doesn't apply. Shamos's shenanigans amount to nothing: you can connect a video capture card to a DVD player, digitize a movie, then encode it with DivX. Neither the capture card nor the DVD player are primarily designed to circumvent copyright protection (even though the DVD player is decrypting). You might have to put a "video stabilizer" or timebase corrector between the player and capture card to remove the Macrovision and CGMS/A information, but again, these devices have other legitimate purposes. Likewise Prof. Shamos could have made a copy of the Sleepless in Seattle DVD onto videotape, logged onto IRC, and offered to trade tapes with someone. FedEx shipments would get the copies exchanged almost as fast as ftp downloads. It's a reasonable analogy to think of DeCSS as the equivalent of the DVD player, and DivX as the equivalent of the VCR that's recording the copy. Just because a digital copy is cheaper and easier to disseminate doesn't make DeCSS or DivX any more illegal than a DVD player or a VCR. *Using* DeCSS to illegally copy and distribute DVDs is another matter entirely. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 20:28:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09729 for dvd-discuss-outgoing; Wed, 5 Jul 2000 20:28:10 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA09726 for ; Wed, 5 Jul 2000 20:28:09 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id UAA31525; Wed, 5 Jul 2000 20:31:40 -0400 Message-ID: <3963D36C.B5352BBE@mit.edu> Date: Wed, 05 Jul 2000 20:31:40 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain References: <20000705131320.B1677@localhost> <4.2.2.20000705155925.02258200@pop.bellatlantic.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 Wendy Seltzer wrote: > Now that technology permits persistent control, fair use principles must be > stepped up, in common law as all fair use was pre-1978 if not yet in > statute, to preserve public access. Courts have already recognized this > necessity when the "protection" comes from the entombing of fair use > content in compiled code or hardware. Sony v. Connectix and Sega v. > Accolade both justify intermediate copying of works -- infringement -- to > enable the public to access their non-copyrightable functions. The same > result should follow where this public access to fair use content is > hindered not by a need to infringe copyright but by a need to bypass an > access control. The constitutional mandate of fair use must adapt to meet > the new controls. The law still does not force access, but it does not > favor "privacation" with the protections of copyright. (You may still have > copyright in an unpublished work (copyright+access control - economic > incentive), but not in halfway publication (copyright+access > control+economic incentive) -- you can only take 2 of 3). Just for clarification: What interpretation did you intend for the -copyright +access control+economic incentive bundle (or is this a bug)? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 20:35:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA09824 for dvd-discuss-outgoing; Wed, 5 Jul 2000 20:35:22 -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 UAA09821 for ; Wed, 5 Jul 2000 20:35:22 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 5 Jul 2000 17:38:28 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CA3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Wed, 5 Jul 2000 17:38:26 -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 there were two IP addresses in that log. The other was 128.2.179.23, supposedly belonging to "VaioBoy" Care to check on that one? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Jeremy Erwin [mailto:jeremy@gmu.edu] > Sent: Saturday, July 01, 2000 9:54 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos > > > On Sat, 01 Jul 2000, you wrote: > > > > Can we get a court order to identify the user of the IP address they > > forgot to leave out? (24.8.102.212) That will allow us to > see if that > > user is connected to CMU. > > > Don't know if this helps, but > > [jeremy@yuggoth jeremy]$ nslookup 24.8.102.212 > Server: ns1.dns.rcn.net > Address: 207.172.3.8 > > Name: cx461121-a.mrdn1.ct.home.com > Address: 24.8.102.212 > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 20:46:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10001 for dvd-discuss-outgoing; Wed, 5 Jul 2000 20:46:34 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA09998 for ; Wed, 5 Jul 2000 20:46:33 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id TAA07275 for ; Wed, 5 Jul 2000 19:49:10 -0500 Message-Id: <200007060049.TAA07275@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: RE: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos Date: Thu, 6 Jul 100 00:49:10 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu 128.2.179.23 points to ALPHA.UL.CS.CMU.EDU. Interestingly, not a cable modem. Upon discovering this and rereading the Declaration, I only became more confused. He claims that the tranaction occurred over a cable modem, but now his IP was at CMU. Beats me. I figure it'll all be straightened out at the deposition one way or another. Chris > there were two IP addresses in that log. The other > was 128.2.179.23, supposedly belonging to "VaioBoy" > > Care to check on that one? > > -- > -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 Jul 5 21:12:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10212 for dvd-discuss-outgoing; Wed, 5 Jul 2000 21:12:55 -0400 Received: from dial203.roadrunner.com (dial203.cybermesa.com [209.12.75.203] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10202 for ; Wed, 5 Jul 2000 21:12:51 -0400 Received: (from paul@localhost) by dial203.roadrunner.com (8.8.7/8.8.7) id TAA04172 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 19:16:22 -0600 Date: Wed, 5 Jul 2000 19:16:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705191620.A3297@localhost> References: <20000705115712.C1226@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Wed, Jul 05, 2000 at 05:02:39PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 05:02:39PM -0700, Jim Taylor wrote: > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore > Sent: Wednesday, July 05, 2000 10:57 AM > > >"Decryption" != circumvention. The law makes circumvention illegal, > >not decryption. > True. The key point is that the copyright information is removed as a > byproduct of the decryption process. > It's the encryption that controls access to the protected work (by > establishing that it's protected). I think a great deal of confusion has arisen among the less technically knowledgeable because "access" has a fuzzy but established meaning in infringement suits. The pre-existing "access", which I'll call infringement-access is different from 1201-access. Infringement-access is access to a copy, and allows copying. 1201-access is (at least in part), converting the ciphertext into the plaintext. This conversion can be done either before or after the production of an infringing copy. > By removing the encryption, one circumvents the access control. Not if one removes the encryption "with authority". Circumvention of an access control only occurs if one has 1201-access without authority of the copyright owner. I'm saying lawful owners of DVDs have authority, so their use of DeCSS is never circumvention. (Not even after 1201(a)(1) enters into force on Oct. 28, 2000). o (3) As used in this subsection - + (A) to ''circumvent a technological measure'' means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and > So the question is, is circumvention the goal? I disagree. The question of circumvention (a)(1) turns on whether you have authority or not. The question of whether trafficking (a)(2) is legal or not turns on (i) designed to circumvent (ii) only limited commercial use other than circumvention (iii) is market to circumvent, all three at once. > In the case of DMCA it comes down to whether > DeCSS is "primarily designed or produced for the purpose of circumventing > protection." But if we never get near circumvention because the authority model of CSS it totally broken (the stolen DVD example demonstrates that CSS has a broken authority model), then one never gets to (a)(2) trafficking. > If you argue that DeCSS can legitimately be used as a device > for playing movies (on behalf of an owner of a disc), then DMCA doesn't > apply. I agree with this. There are two way in which this argument might be supported A. The legitimate copy-owner is authorized, so circumvention is possible. B. Access cannot be denied if the use following 1201-access is a legitimate copyright (or non-copyright use?) > Shamos's shenanigans amount to nothing: you can connect a video > capture card to a DVD player, digitize a movie, then encode it with DivX. > Neither the capture card nor the DVD player are primarily designed to > circumvent copyright protection (even though the DVD player is decrypting). > You might have to put a "video stabilizer" or timebase corrector between the > player and capture card to remove the Macrovision and CGMS/A information, > but again, these devices have other legitimate purposes. Likewise Prof. > Shamos could have made a copy of the Sleepless in Seattle DVD onto > videotape, logged onto IRC, and offered to trade tapes with someone. FedEx > shipments would get the copies exchanged almost as fast as ftp downloads. > It's a reasonable analogy to think of DeCSS as the equivalent of the DVD > player, and DivX as the equivalent of the VCR that's recording the copy. > Just because a digital copy is cheaper and easier to disseminate doesn't > make DeCSS or DivX any more illegal than a DVD player or a VCR. > *Using* DeCSS to illegally copy and distribute DVDs is another matter > entirely. We should be careful here, 1201(a) is a prohibition on 1201-access control circumvention. It is not about rights control or exclusive rights. The things you describe are a potentially a violation of 106(1) (modulo fair use). It is really important that we be more specific than "copyright protection". The statute has access control 1201(a) and rights control 1201(b). A great deal of what the plaintiffs have written in their court filings belongs as part of a 1201(b) lawsuit, it simply doesn't belong in 1201(a) proceedings. They to are under the delusion that 1201-access has something to do with copy control. It doesn't. I can decrypt before or after I make an infringing copy. 1201-access is not a prerequisite to copying. It isn't infringement-access. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 21:12:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10206 for dvd-discuss-outgoing; Wed, 5 Jul 2000 21:12:54 -0400 Received: from thoughtpolice.bigbrother.net (patchi.organic.com [208.241.222.3] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10203 for ; Wed, 5 Jul 2000 21:12:53 -0400 Received: from bigbrother.net (IDENT:sterno@localhost [127.0.0.1]) by thoughtpolice.bigbrother.net (8.9.3/8.9.3) with ESMTP id RAA03296; Wed, 5 Jul 2000 17:20:32 -0500 Message-ID: <3963B4AE.FEB86D9B@bigbrother.net> Date: Wed, 05 Jul 2000 17:20:31 -0500 From: Steve Stearns X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan on Junger References: <20000705213359.7935.qmail@web515.mail.yahoo.com> <3963B11E.7BCDF58D@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 Dan Steinberg wrote: > a) judge chooses to *not' get it cause they really dont want to go > down that particular road in trial for whatever reasons they have. In > this case theres nothing to be done but properly document for appeal > purposes. error in law is usually a pretty good grounds for appeal in > most jurisdictions (yer mileage may vary) > My impression has been that he chooses not to get it because he sees this as being an issue Congress needs to work out. The law, as written is subject to rather broad interpretation, and I don't think he wants to go out on a limb to interpret it. The intepretation of the DMCA is a very big deal because it has the potential to reconstruct the fundamental nature of copyright. Kaplan seems to be taking the approach of interpreting in a very conservative manner because to do otherwise may go beyond what congress intended. That is not to say that his current approach isn't against what congress intended (I think it is), but at least this way, he isn't potentially damaging the money making apparatus of one of the countries big industries. If the Supreme Court wants a whack at it, they can take it on appeal, but Kaplan isn't going to take any risks here He'll just sign the paperwork and move on. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 21:16:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10344 for dvd-discuss-outgoing; Wed, 5 Jul 2000 21:16:50 -0400 Received: from orange.fenimore.org (dial203.cybermesa.com [209.12.75.203] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10341 for ; Wed, 5 Jul 2000 21:16:42 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id TAA04200 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 19:20:19 -0600 Date: Wed, 5 Jul 2000 19:20:18 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain Message-ID: <20000705192018.B3297@localhost> References: <20000705131320.B1677@localhost> <4.2.2.20000705155925.02258200@pop.bellatlantic.net> <3963D36C.B5352BBE@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3963D36C.B5352BBE@mit.edu>; from ravi_n@mit.edu on Wed, Jul 05, 2000 at 08:31:40PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 08:31:40PM -0400, Ravi Nanavati wrote: > Wendy Seltzer wrote: > > > Now that technology permits persistent control, fair use principles must be > > stepped up, in common law as all fair use was pre-1978 if not yet in > > statute, to preserve public access. Courts have already recognized this > > necessity when the "protection" comes from the entombing of fair use > > content in compiled code or hardware. Sony v. Connectix and Sega v. > > Accolade both justify intermediate copying of works -- infringement -- to > > enable the public to access their non-copyrightable functions. The same > > result should follow where this public access to fair use content is > > hindered not by a need to infringe copyright but by a need to bypass an > > access control. The constitutional mandate of fair use must adapt to meet > > the new controls. The law still does not force access, but it does not > > favor "privacation" with the protections of copyright. (You may still have > > copyright in an unpublished work (copyright+access control - economic > > incentive), but not in halfway publication (copyright+access > > control+economic incentive) -- you can only take 2 of 3). > > Just for clarification: > > What interpretation did you intend for the -copyright +access > control+economic > incentive bundle (or is this a bug)? I think: Copyright plus access control are an economic incentive to authors. 1201 is not a rewrite of 290/210 years of copyright to abolish or limit the concept of publication. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 21:21:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA10410 for dvd-discuss-outgoing; Wed, 5 Jul 2000 21:21:53 -0400 Received: from dial230.roadrunner.com (sf-du230.cybermesa.com [209.12.75.230]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA10407 for ; Wed, 5 Jul 2000 21:21:50 -0400 Received: (from paul@localhost) by dial230.roadrunner.com (8.8.7/8.8.7) id TAA04348 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 19:25:27 -0600 Date: Wed, 5 Jul 2000 19:25:26 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New way of phrasing? Message-ID: <20000705192525.A4216@localhost> References: <20000705115712.C1226@localhost> <20000705191620.A3297@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000705191620.A3297@localhost>; from fenimore@roadrunner.com on Wed, Jul 05, 2000 at 07:16:21PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 07:16:21PM -0600, Paul Fenimore wrote: > On Wed, Jul 05, 2000 at 05:02:39PM -0700, Jim Taylor wrote: [ ... ] > > If you argue that DeCSS can legitimately be used as a device > > for playing movies (on behalf of an owner of a disc), then DMCA doesn't > > apply. > > I agree with this. There are two way in which this argument might > be supported > A. The legitimate copy-owner is authorized, so circumvention is possible. possible --> impossible. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 5 22:44:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10818 for dvd-discuss-outgoing; Wed, 5 Jul 2000 22:44:24 -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 WAA10815 for ; Wed, 5 Jul 2000 22:44:23 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 13A1gM-0000Pg-00 for ; Wed, 05 Jul 2000 21:46:30 -0500 Date: Wed, 5 Jul 2000 21:46:29 -0500 (CDT) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <000501bfe6b3$75bb3200$87ce0593@ia.nsc.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 Jul 2000, John Zulauf wrote: > > Seth David Schoen replied when: > > John Galt writes: > > > > 14.5 Were you licensed to own said copy of the Matrix when you > downloaded > > > it? > > > 14.5.a did you erase all extant copies of the Matrix when you were done? > > > /* remeber: Shamos is an IP attorney. If he wasn't licensed for it, he > > > just set himself up for the Big Hit--willful violation of the law as an > > > officer of the court. If Shamos answers no on 14.5, Garbus oughta > > > personally thank him for making the case. If Shamos answers yes, we > > > still have no proven damage...*/ > > > > He could have had permission from the copyright holders, seeing as > > he was _working for them_. > > Yes but aren't the plaintiffs arguing that circumvention itself is a > violation of 1201 even if no copyright violation is involved? Thus Shamos > could be accused of engaging in criminal activity -- unless of course he > accedes to the opinion that DeCSS is not in fact "circumvention" but simple > interoperability or player independence. Thus, either DeCSS is a violation of the anti-circumvention provisions of the DMCA for everyone (whereby the prosecution is using unclean hands), or, the DMCA anti-circumvention provisions are subject to proof of copyright infringment... (i.e. the same provisions in copyright law that grant fair use also grant the copyright owner the right to allow someone to circumvent their technological measures for the purpose of this case) So, in a nutshell, either the prosecution is also guiltiy of a violation of 1201; or no one is as long as they have the "traditional" copyright authorization to use the work. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 Jul 2000 23:37:26 -0400 Received: (from paul@localhost) by dial182.roadrunner.com (8.8.7/8.8.7) id VAA04890 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 21:41:04 -0600 Date: Wed, 5 Jul 2000 21:41:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Ex Post Facto, was: Declaration of Michael Shamos Message-ID: <20000705214102.A4361@localhost> References: <20000705130955.A1677@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from sam@uchicago.edu on Wed, Jul 05, 2000 at 06:06:45PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 06:06:45PM -0500, sam th wrote: [ ... ] > On Wed, 5 Jul 2000, Paul Fenimore wrote: > > > > > > > > > I think the DMCA is intended to allow encrypted streaming content over > > the intenet on a pay-per-view or subscription basis. Something that > > would definately be covered would be a specialized device, such as a > > cable descrambler box that allowed non-paying customers access to > > material they had no right to view. > > > > More generally, I think the DMCA can have use when the key and the > ciphertext are distributed seperately (solving the "privacy problem" you > have refered to). This allows the content owner to freely distribute the > ciphertext, but charge for the key, and would make decryption w/o the key > illegal. This is exacltly analagous to sattelite television, where the EM > waves are free, but the authorization to use them is not. This would be a > different case (and one I wouldn't feel as bad about) if the MPAA were > giving DVD's out in the streets, and just charging for players. This is > the same model. It's when they want to have their cake and eat it too that > the trouble arises. I wasn't thinking of free media when I said access control should not apply to authorized copies after publication. I justified this with possible ex post facto effects. I think the ex post facto problems can be solved using Bryan's "access is atomic" paradigm in conjunction with non-revocation. The problem I see here is that once you permit copyright owners to control access outside the scope of copy-less distribution, you're back to dinking with historically core copyright principles. Once the idea of publication takes a hit, it isn't at all clear to me that "copyright" would have much at all to do with "promote progress". I'm not quite sure how to handle this, but my initial inclination is to take it as a challenge to the statute's validity. But, I'm not sure. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 00:09:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11366 for dvd-discuss-outgoing; Thu, 6 Jul 2000 00:09:24 -0400 Received: from dial123.roadrunner.com (dial123.cybermesa.com [209.12.75.123] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11362 for ; Thu, 6 Jul 2000 00:09:22 -0400 Received: (from paul@localhost) by dial123.roadrunner.com (8.8.7/8.8.7) id WAA05156 for dvd-discuss@eon.law.harvard.edu; Wed, 5 Jul 2000 22:12:52 -0600 Date: Wed, 5 Jul 2000 22:12:52 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Another approach to "authority" Message-ID: <20000705221251.A5072@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's a twist on authority that I don't think has been mentioned yet. We claim: DeCSS does not allow access when it is not authorized. Because it doesn't allow access without authorization, it never circumvents. Example: 1. Copy encrypted VOB and IFO files to consumer-grade media. 2. Sell the media to someone, so that we're sure we're doing something illegal. 3. The second person drops the unauthorized copy in their DVD drive, and trys to run DeCSS on the disk. Oops. No disk key block. No 1201-access. This view may have the effect of making it illegal to cryptanalyze a work in _some_ circumstances, but I'm not sure that is a loss ... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 00:53:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11614 for dvd-discuss-outgoing; Thu, 6 Jul 2000 00:53:58 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11611 for ; Thu, 6 Jul 2000 00:53:56 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA32144 for ; Wed, 5 Jul 2000 23:56:33 -0500 Message-ID: <396410AC.36BFD5C6@mninter.net> Date: Wed, 05 Jul 2000 23:53:00 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Paul Fenimore wrote: > > Here's a twist on authority that I don't think has been mentioned > yet. We claim: > > DeCSS does not allow access when it is not authorized. Because it > doesn't allow access without authorization, it never circumvents. I'm not sure this flies: The studio will claim defiantly and with reasonable defense that all copyright-violative distributions are a priori unauthorized--and even without a license or claim to authority in any other instance, I would be inclined to agree in this case. Because, if you take a bitwise copy of a DVD, sell it in violation of copyright and use DeCSS, you can and would be accessing without authorization. Unfortunately for everyone trying to make sense of the studio position, regular DVD players would do the same thing... This is just more evidence that 1201 authority for CSS is broken beyond repair. In other words, as has been mentioned many ways before: DeCSS's and an ordinary DVD players' liklihood of providing access are in 1:1 correlation, whether authorized, dis-authorized, or inbetween. They are interchangable--until the studio claims that the use of DeCSS itself disauthorizes its own access, which does not jive with anything they told me when I bought every one of my DVDs. I don't think we need to chase any authorization butterflies in this trial. We should be able to ask the simple question and get the simple answer. When is access authorized? If there is no answer, if the answer is inconsistant with their claims at first sale (none), if the answer is ill-defined or transitory, or if the answer is anti-competitive or abusive of copyright--case closed. The only alternative is a rational definition of authorization that is consistant with reality and can exclude DeCSS but include licensed players (fat chance). If you missed it, take a look at my comments to the copyright office about why this simple test must be met for all 1201 circumvention- protected works. http://www.underwhelm.org/decss/Moseng_Comments.pdf - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWQQpTik9YADgV7kEQLjeQCeLMAPjlcMZxoLVXsCY0Gy4ZpsmAgAnjQI GDrAxoYyR/rlkFyGClMco6cM =2qSD -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 01:29:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA11796 for dvd-discuss-outgoing; Thu, 6 Jul 2000 01:29:01 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA11793 for ; Thu, 6 Jul 2000 01:28:59 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id WAA05035 for ; Wed, 5 Jul 2000 22:31:40 -0700 Date: Wed, 5 Jul 2000 22:31:40 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain In-Reply-To: <3963D36C.B5352BBE@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, 5 Jul 2000, Ravi Nanavati wrote: > Wendy Seltzer wrote: > > (You may still have copyright in an unpublished work > > (copyright+access control - economic incentive), but not in halfway > > publication (copyright+access control+economic incentive) -- you can > > only take 2 of 3). > > Just for clarification: > What interpretation did you intend for the -copyright +access > control+economic incentive bundle (or is this a bug)? I think -copyright+access control+economic incentive is showing a great print of an old silent film on the big screen (or putting it out on a nice DVD). You don't have copyright, but you have access control (you let who you want into the theater, or buy the convenient commercial disc) and an economic incentive. Maybe I'm misunderstanding. J. Actually... I'm thinking maybe copyright IS economic incentive... and access control IS economic incentive, but you must give up one of copyright or access control in order to benefit from that incentive. I dunno. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 03:11:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA12204 for dvd-discuss-outgoing; Thu, 6 Jul 2000 03:11:04 -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 DAA12201 for ; Thu, 6 Jul 2000 03:11:02 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id BAA02425 for ; Thu, 6 Jul 2000 01:13:46 -0600 Date: Thu, 6 Jul 2000 01:13:46 -0600 (MDT) From: John Galt To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CA3@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 It's a DHCP client in CMU, so can vary depending on who got it assigned last. On Wed, 5 Jul 2000, Richard Hartman wrote: > there were two IP addresses in that log. The other > was 128.2.179.23, supposedly belonging to "VaioBoy" > > Care to check on that one? > > -- Pardon me, but you have obviously mistaken me for someone who gives a damn. email galt@inconnu.isu.edu From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 09:18:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14430 for dvd-discuss-outgoing; Thu, 6 Jul 2000 09:18:29 -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 JAA14427 for ; Thu, 6 Jul 2000 09:18:27 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66DLIP16279 for ; Thu, 6 Jul 2000 16:21:19 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 16:21:18 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [DeCSS] Declaration of Michael Shamos In-Reply-To: <395E14DF.A7A359E3@debian.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 Sat, 1 Jul 2000, Matthew R. Pavlovich wrote: >If I have a University with 1000 students and faculty and I upgrade the >current 10Mbps backbone to 100Mbps, the resulting improvement of >performance to each of the persons in the university is not 100Mbps, it >is 100Mbps/1000 persons, or .1 Mbps. aka 100k/s. Plus it's a known fact that LANs scale sublinearly. >32. Compression technology is constantly improving. Using MPEG4, it is >possible to watch a DivX in full motion at a bandwidth of 858 kilobits >per second, lower than T1 bandwidth. Assuming someone was able to send at that speed over notable distances, to more than one people at a time. Plus pay for the transmission cost without recouping the costs in some fashion. I doubt people you find in IRC will. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 09:46:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14708 for dvd-discuss-outgoing; Thu, 6 Jul 2000 09:46:03 -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 JAA14705 for ; Thu, 6 Jul 2000 09:46:01 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66DmsZ18847 for ; Thu, 6 Jul 2000 16:48:54 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 16:48:53 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <0FX300FD6FS8RM@mta5.snfc21.pbi.net> Message-ID: MIME-Version: 1.0 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 On Sun, 2 Jul 2000, Paul Hsieh wrote: >Well, no. A transformer is the physical limit of any kind of powerline network, >since it gibbers up the signal so much. Powerline can be used to distribute >broadband once it reaches the home, but it can't carry the signal TO the home." That's a weird claim. Transformers are somewhat higher up the line. I think the original Nortel idea was similar to cable modem: Fibre To The Curb (FTTC), then distribution through existing powerlines. Pull the fibre along powerlines and aggregate. Remember, these technologies are not about ultimate speed but rather the cost trouble with the local loop. >So it seems that Nortel appears to have all but abandoned this idea, nobody can >get above 1Mb/s and nobody has a product that goes beyond home networking. That's the problem. Cable has a lot more usable bandwidth. But in rural areas the Nortel design might still take off. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 09:57:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA14857 for dvd-discuss-outgoing; Thu, 6 Jul 2000 09:57:56 -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 JAA14852 for ; Thu, 6 Jul 2000 09:57:55 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66E0kb20044 for ; Thu, 6 Jul 2000 17:00:47 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 17:00:45 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <395FE53E.33B16477@mninter.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 Sun, 2 Jul 2000, Chris Moseng wrote: >Basically, the ideas presented in this article refute Prof. Shamos's >misleading claims that "Available bandwidth has been increasing ... at a >rate of 5-10 times that of CPU processor speeds." In fact, the bandwith >increases attributed to fiber optic technologies, according to these >articles, are coming **just fast enough to keep up with the advances in >bandwidth utilization*** resulting in no net gain in speed. Furthermore, the predominant way to drive up fibre bandwidth is to use WDM and DWDM techniques. These are good for aggregated high bandwidth connections but *cannot* be adapted for single connections. In fact, I'm not quite sure router technology can even remotely keep up with the highest WDM rates achievable today. So this is profoundly different from the technology at the rim of the Net. Even if the current technology is driven to its limits, it will not bring gigabit connectivity to the network edge. Now, even if we somehow did get 1Gbps connectivity across the Net, the so called long fat pipe problem (TCP cannot fully utilize the fastest connections because the retransmit buffering needed would be far too much to achieve cost effectively) would limit transfer speeds. The same goes for hard drive speeds. >The advances are not nearly as rapid as claimed, and more importantly >have nothing to do with the bandwidth of "the last mile" that consumers >ever see. Precisely. That's why they are centering on university environments, where high bandwidths might be unreasonably accessible. >Until everybody decides to put a $100,000 fiber optic routing >unit in their basement, we're all still stuck with 56k, rate-limited >cable modems and distance-limited DSL. And since they are worried about international piracy, they should remember that most countries outside the US still do not have a wide installed base of even DSL. Holds for Finland, at least. The distances are too great to warrant DSLing anything but the biggest cities. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 10:17:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15002 for dvd-discuss-outgoing; Thu, 6 Jul 2000 10:17:57 -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 KAA14997 for ; Thu, 6 Jul 2000 10:17:56 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66EKnK22337 for ; Thu, 6 Jul 2000 17:20:49 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 17:20:48 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <3960829F.DB6C31D@mninter.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 Mon, 3 Jul 2000, Chris Moseng wrote: >4. Is DeCSS a necessary step in performing the acts in this declaraion? An interesting thought... If DVD quality dominates MPEG4 (conceeded in the declaration), it is doubtful whether grabbing the analog output of a DVD player and encoding from there makes any perceptible difference after MPEG4 does its deed. So DeCSS indeed isn't needed. And you know, you can pay for the grabber with the money you would have spent on a DVD drive. >26. How much would the declarant pay for the DivX copy of The Matrix >that he downloaded, if sold in a store? Does it have any value? Why or >why not? Nice. A restatement of the old argument that having access to a free copy does not imply the willingness to buy a $20 one instead if the freee one isn't availabl; thus, no impact and no demonstrable harm done. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 10:25:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15185 for dvd-discuss-outgoing; Thu, 6 Jul 2000 10:25:16 -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 KAA15182 for ; Thu, 6 Jul 2000 10:25:13 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66ES6v22920 for ; Thu, 6 Jul 2000 17:28:06 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 17:28:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <20000703102921.A520@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 Mon, 3 Jul 2000, Paul Fenimore wrote: >1201(a)(3)(B) uses the word "requires", which would seem to rule out >a one-bit flag as opposed to crypto. On the other hand, wasn't the wording something like 'requires in the course of normal operation'? So the 'requires' might be interpreted as 'requires, in order to operate as intended,'. In this case anything goes. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 10:27:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15272 for dvd-discuss-outgoing; Thu, 6 Jul 2000 10:27:02 -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 KAA15269 for ; Thu, 6 Jul 2000 10:27:01 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e66ETrg23110 for ; Thu, 6 Jul 2000 17:29:54 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 6 Jul 2000 17:29:53 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <20000703105024.A929@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 Mon, 3 Jul 2000, Paul Fenimore wrote: >Knowing what procedure was followed, what was necessary to sync the >video and audio, may be relevant to whether or not the procedure could >be automated, or if there will always be a need for human intervention >to sync video and audio. I expect human intervention is necessary. Isn't the need for resync a mitigating factor in itself? I.e. DeCSS doesn't work in itself, you need other stuff as well? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 11:27:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15584 for dvd-discuss-outgoing; Thu, 6 Jul 2000 11:27:50 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA15581 for ; Thu, 6 Jul 2000 11:27:48 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id KAA11204 for ; Thu, 6 Jul 2000 10:30:42 -0500 (CDT) Message-ID: <3964A5D6.C559EDB1@uic.edu> Date: Thu, 06 Jul 2000 10:29:27 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos 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 On Wed, 5 Jul 2000, John Zulauf wrote: > So, in a nutshell, either the prosecution is also guiltiy of a violation > of 1201; or no one is as long as they have the "traditional" copyright > authorization to use the work. So the defense should produce an independant DVD author who has published a work on a CSS encoded DVD, to testify that she has not authorized the MPAA to possess or operate DeCSS under any circumstances, or any other device or software that can decode CSS. Then the defense could theoretically bring charges against Mr. Shamos and the MPAA for violating 1201, based on Mr. Shamos' deposition. The defense could also ask that the MPAA companies be ordered to destroy not only all of their copies of DeCSS but ALSO of any additional software or hardware in their possession that have the capability of decrypting CSS. Does anyone know if DVD authoring tools have that capability built in? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 11:46:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15797 for dvd-discuss-outgoing; Thu, 6 Jul 2000 11:46:35 -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 LAA15794 for ; Thu, 6 Jul 2000 11:46:34 -0400 Message-ID: <20000706154857.3987.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 06 Jul 2000 08:48:57 PDT Date: Thu, 6 Jul 2000 08:48:57 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Ex Post Facto, was: Declaration of Michael Shamos 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 --- sam th wrote: > More generally, I think the DMCA can have use when the key and the > ciphertext are distributed seperately (solving the "privacy problem" > you have refered to). This allows the content owner to freely > distribute the ciphertext, but charge for the key, and would make > decryption w/o the key illegal. [continued below] I agree with this - in fact you've stated it pretty consicely. I think we should dig up every quote in the legislative history that supports this and make this case strongly. Basically, we argue that the MPAA is mis-applying the law outside of it's intended scope. If we can show that the above interpretation is textually grounded in statue and legislative history then we can also make a "you must pick this because it sidesteps Constitutional questions" arguement. > [continued from above] This is exacltly analagous > to sattelite television, where the EM waves are free, but the > authorization to use them is not. This would be a > different case (and one I wouldn't feel as bad about) if the MPAA > were giving DVD's out in the streets, and just charging for > players. This is the same model. It's when they want to have > their cake and eat it too that the trouble arises. Isn't the streambox case basically like this? They freely distribute encoded works in an encrypted shell that they use to enforce the copy-bit. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 12:29:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16233 for dvd-discuss-outgoing; Thu, 6 Jul 2000 12:29:33 -0400 Received: from dial138.roadrunner.com (dial138.cybermesa.com [209.12.75.138] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16230 for ; Thu, 6 Jul 2000 12:29:29 -0400 Received: (from paul@localhost) by dial138.roadrunner.com (8.8.7/8.8.7) id KAA00784 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 10:32:54 -0600 Date: Thu, 6 Jul 2000 10:32:53 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000706103252.A596@localhost> References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <396410AC.36BFD5C6@mninter.net>; from moseng@mninter.net on Wed, Jul 05, 2000 at 11:53:00PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 05, 2000 at 11:53:00PM -0500, Chris Moseng wrote: [ ... ] > Paul Fenimore wrote: > > > > Here's a twist on authority that I don't think has been mentioned > > yet. We claim: > > > > DeCSS does not allow access when it is not authorized. Because it > > doesn't allow access without authorization, it never circumvents. > > I'm not sure this flies: If nothing else, it is another demonstration of why the authority model is broken. > The studio will claim defiantly and with reasonable defense that all > copyright-violative distributions are a priori unauthorized--and even > without a license or claim to authority in any other instance, I > would be inclined to agree in this case. Right! DeCSS decodes/descrambles the contents of a DVD under exactly the same conditions as a player licensed by the DVD-CCA. So what are they complaining about? > Because, if you take a bitwise copy of a DVD, sell it in violation of > copyright and use DeCSS, you can and would be accessing without > authorization. > > Unfortunately for everyone trying to make sense of the studio > position, regular DVD players would do the same thing... This is just > more evidence that 1201 authority for CSS is broken beyond repair. This is one of the strong points of this analysis. DeCSS behaves like a licensed player. They can't complain about the fact that DeCSS treats DVDs in exactly the same way as the Xing player software. *They* are the ones who chose the default behavior of a player re: access. Not MoRE or 2600 magazine. There are two things the MPAA is complaining about here. First, that CSS is broken. But DeCSS isn't CSS. Why sue 2600 if that is their real beef? If their real problem is with CSS's broken authority model, they should sue the DVD-CCA. (Not under 1201 of course). Second, they rant on and on and on and on and on and on ... about copying! That's a 1201(b) issue, and because 1201-access isn't infringement-access, it isn't even tangentially related to establishing a violation of 1201(a). Harm, perhaps. But not the violation. The MPAA is trying to coast home on the issue of whether a 1201(a) violation, either (a)(1) or (a)(2) is even possible. > In other words, as has been mentioned many ways before: DeCSS's and > an ordinary DVD players' liklihood of providing access are in 1:1 > correlation, whether authorized, dis-authorized, or inbetween. They > are interchangable--until the studio claims that the use of DeCSS > itself disauthorizes its own access, which does not jive with > anything they told me when I bought every one of my DVDs. It is also important that their claims of authorization don't make sense if you look at the case of a stolen, but authorized DVD. > I don't think we need to chase any authorization butterflies in this > trial. With all due respect, I disagree. Those are dragons, not butterflys. If you can't blast the "a license player is necessary for authorization" line of argument out of the sky, we're looking down down the barrel of a loaded lawsuit. There's a player key in there, and it is important to show that it can't be the authorization. > We should be able to ask the simple question and get the > simple answer. When is access authorized? If there is no answer, if > the answer is inconsistant with their claims at first sale (none), if > the answer is ill-defined or transitory, or if the answer is > anti-competitive or abusive of copyright--case closed. The only > alternative is a rational definition of authorization that is > consistant with reality and can exclude DeCSS but include licensed > players (fat chance). I think the 1:1-functionality and stolen-DVD examples nail the coffin shut on distinguishing DeCSS from licensed players as the conveyance of authority. Comments and/or objections? If one looks to first-sale as a point at which the copyright owner can qualify the nature of their grant of authority to access, then the door to abuse of copyright is left wide open. This is really a place where judicial review of the statute is vital. The literal wording of the (a)(1), ignoring 1201(c), leads to a world where copyright is the instrument of Beelzebub. Without Bryan Taylor's "access is atomic" we're all hosed. The question I'm still not clear on is whether "DeCSS allows access 1:1 with licensed players" is useful in getting some critical review of the statute and limitations on the MPAA postulated copyright owner's "right" to control access. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 12:39:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA16379 for dvd-discuss-outgoing; Thu, 6 Jul 2000 12:39:32 -0400 Received: from dial138.roadrunner.com (dial138.cybermesa.com [209.12.75.138] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA16376 for ; Thu, 6 Jul 2000 12:39:29 -0400 Received: (from paul@localhost) by dial138.roadrunner.com (8.8.7/8.8.7) id KAA00801 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 10:42:58 -0600 Date: Thu, 6 Jul 2000 10:42:57 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Message-ID: <20000706104256.C596@localhost> References: <20000703102921.A520@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Thu, Jul 06, 2000 at 05:28:06PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 06, 2000 at 05:28:06PM +0300, Sampo A Syreeni wrote: > On Mon, 3 Jul 2000, Paul Fenimore wrote: > > >1201(a)(3)(B) uses the word "requires", which would seem to rule out > >a one-bit flag as opposed to crypto. > > On the other hand, wasn't the wording something like 'requires in the course > of normal operation'? So the 'requires' might be interpreted as 'requires, > in order to operate as intended,'. In this case anything goes. You're right that it might get dicey. Dropping the disk into the player is the normal course of operation. Taking consumer media and copying bit-for-bit and pressing new disks with industrial equipment is not the normal course of operation. The thing that might save this line of argument is that one can't tell the authorized from unauthorized copies, so one can perhaps argue that only dropping the disk into the drive and pushing "play" is relevant. If the court agrees that indistinguishability means the only the player end need be analyzed, then we've got a hammer to go after "effectively control access." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 13:44:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17389 for dvd-discuss-outgoing; Thu, 6 Jul 2000 13:44:08 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17386 for ; Thu, 6 Jul 2000 13:44:06 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA24428 for ; Thu, 6 Jul 2000 12:46:41 -0500 Message-ID: <3964C794.58ACC564@mninter.net> Date: Thu, 06 Jul 2000 12:53:24 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 >With all due respect, I disagree. Those are dragons, not > > butterflys. If you can't blast the "a license player is necessary > for > authorization" line of argument out of the sky, we're looking down > down the barrel of a loaded lawsuit. There's a player key in there, > and it is important to show that it can't be the authorization. You're right. Allow me to rephrase: We shouldn't be *obligated* to chase down their *very pivotal* definition of authorized. If that definition is hard to come by, it must therefore be unenforceable. If it flows easily from their lips for once, it still could fail for the reasons I outlined. If their definition of authority fails in any way There Is No Lawsuit! My point is that the onus is on them, not us, to delineate their authority model. It must be the first question on the table. Once delineated, I see every positive trial outcome as trivial. > If one looks to first-sale as a point at which the copyright owner > can qualify the nature of their grant of authority to access, then > the door to abuse of copyright is left wide open. Personally, I don't mind that. What's the punishment for copyright abuse? Loss of copyright. Let them abuse their copyright. See what it gets them. > The question I'm still not clear on is whether "DeCSS allows access > 1:1 with licensed players" is useful in getting some critical > review of the statute and limitations on the MPAA postulated > copyright > owner's "right" to control access. Absolutely, if their authority model relys on "authorized players" to grant access, but "unauthorized players" are indistinguishable from the authorized ones and are legitimately reverse-engineered. This would grant the copyright owner a monopoly over players, something I surmise would be untenable. If this is their model, they're bringing 1201 down with them. Moreover, I would argue that simply having an "authorized player" cannot imply authorized access. If I stole the authorized player to play my legitimate DVD, are they willing to say that my access is authorized? To agree, besides bringing them further into "deep [anti-trust] legal water," DeCSS is exactly that--a "stolen," authorized player. DeCSS is authorized, QED. To disagree, and stipulate that "authorized" players only come from authorized channels, they've hanged themselves, and probably 1201, over CSS. I'm sorry I can't be more rigorous, my law background is fantastically limited. Do let me know if I'm mistaken. Chris, with no apologies to Mr. Valenti. - - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWTHNjik9YADgV7kEQLr8ACg4tnoKKGoDRna2/tClZrfPwhsp7gAoPW9 RcyRFERARWYFvwIPt8jc3K0X =4UO9 -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 13:46:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17497 for dvd-discuss-outgoing; Thu, 6 Jul 2000 13:46:06 -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 NAA17494 for ; Thu, 6 Jul 2000 13:46:05 -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 NAA01637; Thu, 6 Jul 2000 13:09:19 -0400 Message-Id: <200007061709.NAA01637@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: [dvd-discuss] Junger on Kaplan on Junger In-reply-to: Your message of "Wed, 05 Jul 2000 16:59:01 PDT." <20000705165901.E9454@zork.net> Date: Thu, 06 Jul 2000 13:08:49 -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: : > Assuming that we submit an amicus brief for the trial (which we ought : > to start working on), I think 1203(b)(1) + Junger should be a major : > component of it. It would also be a good idea to recruit some law : > professor types write 1 pagers on this point. : : Like, say, Professor Junger? :-) _Junger_ is the name of a case. Unlike the defendant Secretary of State, my position or style was not included in the caption of the action. I do not normally use the style ``Professor.'' If one must stick something before my name, I would prefer just a simple ``Mr.'' I noted that some quotes from the transcript show that the court reporter spelled ``Junger'' as ``Younger''; since that is the way I normally pronounce it, it doesn't seem to be a ``[sic]able'' offense. Judge Kaplan was correct that on remand the District Court will have to balance the harm to national security that will occur if the export regulations on cryptographic software (which are totally ineffective) are struck down against the importance of my rights that are secured under the first amendment. That is going to be a very heavy burden for the government. But, of course, in the case before him, there is no interest corresponding to the national security which the President himself claimed to be the basis for issuing the export regulations that I am challenging. Of course, there are a lot of cases permitting injunctions against copyright violations because of the escape valve of fair use, but Judge Kaplan has already ruled that fair use does not apply to actions under Section 1201(a). So it would seem that the plaintiffs have a heavy burden in the case before him. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 13:56:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17660 for dvd-discuss-outgoing; Thu, 6 Jul 2000 13:56:22 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17657 for ; Thu, 6 Jul 2000 13:56:20 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13AFvZ-0004to-00; Thu, 06 Jul 2000 10:59:09 -0700 Date: Thu, 6 Jul 2000 10:59:09 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Junger on Kaplan on Junger Message-ID: <20000706105909.R9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000705165901.E9454@zork.net> <200007061709.NAA01637@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007061709.NAA01637@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Thu, Jul 06, 2000 at 01:08:49PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger writes: > Seth David Schoen writes: > > : > Assuming that we submit an amicus brief for the trial (which we ought > : > to start working on), I think 1203(b)(1) + Junger should be a major > : > component of it. It would also be a good idea to recruit some law > : > professor types write 1 pagers on this point. > : > : Like, say, Professor Junger? :-) > > _Junger_ is the name of a case. Unlike the defendant Secretary of State, > my position or style was not included in the caption of the action. I > do not normally use the style ``Professor.'' If one must stick something > before my name, I would prefer just a simple ``Mr.'' You do seem like a law professor with a good understanding of the implications of the _Junger_ case, though, if I may say so. If the defense here considers it useful, could you be recruited to write about it? > I noted that some quotes from the transcript show that the court > reporter spelled ``Junger'' as ``Younger''; since that is the way I > normally pronounce it, it doesn't seem to be a ``[sic]able'' offense. > > Judge Kaplan was correct that on remand the District Court will have > to balance the harm to national security that will occur if the > export regulations on cryptographic software (which are totally > ineffective) are struck down against the importance of my rights that > are secured under the first amendment. That is going to be a very > heavy burden for the government. But, of course, in the case before > him, there is no interest corresponding to the national security which > the President himself claimed to be the basis for issuing the export > regulations that I am challenging. > > Of course, there are a lot of cases permitting injunctions against > copyright violations because of the escape valve of fair use, but > Judge Kaplan has already ruled that fair use does not apply to actions > under Section 1201(a). So it would seem that the plaintiffs have a heavy > burden in the case before him. It seems Kaplan would be creating a new exception to the first amendment -- obscenity, imminent threat to national security, imminent incitement to lawless action, ..., TPM circumvention... One could say that there is much more of a rational basis for banning speech which facilitates circumvention than for banning obscene speech, because at least the interest served by the latter is actually mentioned somewhere in the constitution. -- 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 Jul 6 14:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17865 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:07:12 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA17856 for ; Thu, 6 Jul 2000 14:07:10 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA04267 for ; Thu, 6 Jul 2000 11:10:02 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma003920; Thu, 6 Jul 00 11:08:48 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA29700; Thu, 6 Jul 2000 12:08:46 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] here is an idea for a defense Date: Thu, 6 Jul 2000 12:11:34 -0600 Message-ID: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 Paul Fenimore wrote > If the court agrees that indistinguishability means > the only the player end need be analyzed, then we've > got a hammer to go after "effectively control access." Moreover it attacks the essence of "circumvention." If DeCSS does no more than CSS then DeCSS is not a circumvention of CSS but a "fair use" compliant implementation. Again -- DeCSS doesn't circumvent CSS it implements it. The P's will complain, but "DeCSS copies the ciphertext into cleartext" -- exactly what CSS does. The only difference is that CSS writes that clear text to the video subsystem where it can be RIP'd and written to the hard drive. DeCSS copies the cleartext directly to the hard drive. So both DeCSS and CSS expose the cleartext of the copyrighted contents to the risk of "infinite perfect duplication." While one allows duplication of an MPEG compressed image and the other capture and duplication of non-compressed video. With Shamos they cannot argue these are meaningfully different -- the tools to convert one to the other are freely available. Shamos purports to show how "easy" it is to MPEG encode video with Divx. Given that the MPEG ripper would have to decode and encode the compressed video, compression of an uncompressed stream (at a lower compression ratio to recreate the DVD quality) would be easier and faster. Even without compression, accepting Shamos's claims of network bandwidth growth, the uncompressed video stream soon will be a practical, plausible piracy risk. Again reenforcing the notion that CSS places the content (the MOVIE itself) to exactly the same extent that DeCSS does. For someone with an illegal profit motive, CSS is just as good as DeCSS for piracy. It seems that Shamos supports the idea that DeCSS implements not circumvents CSS. John Zulauf private netizen PS. Here's a bit of logic I'm sketchy on. Thoughts? Hmmm, one could argue that CSS software players circumvent to exactly same extent that DeCSS does. The only difference -- the player license NOT the authorization to play the DVD in the first place. Since clearly CSS cannot circumvent itself, it remains that there is no "circumvention" in the legal sense, since a player MUST first convert the content to clear text. o.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e66Ivur01354 for ; Thu, 6 Jul 2000 13:57:56 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id NAA29586 for ; Thu, 6 Jul 2000 13:57:55 -0500 (CDT) Date: Thu, 6 Jul 2000 13:57:54 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Why I love Justice Stevens Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am currently reading Jefferson Parish Hospital v Hyde[1] (as reccomended by Doug[2]), and believe me, the P's never want this case mentioned in court. It sets a clear standard for a finding of anti-competitive tying, and that standard is one that the P's have met with flying colors. On to the analysis. First, a quote: Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such "forcing" is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated. 'the sellers exploitation' - agreements with DVDCCA 'control over the tying product' - the P's have ~100% of DVD market 'force the buyer' - other options are illegal (according to them) under 1201 'tied product' - DVD player manufactured by DVDCCA member 'did not want at all' - I'm sure there's some use of VOB files other than playing them 'might have prefered to purchase elsewhere' - say, from LiViD 'on different terms' - like, free and GPL'd I think this makes our case for Sherman/Clayton Act violation right there. But it keeps going. Before actual analysis, a few more choice quotes. By conditioning his sale of one commodity on [466 U.S. 2, 13] the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the `tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the `tied' product would convince freely choosing buyers to select it over others anyway." Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 605 (1953). 19 Given the restrictions on current DVDCCA-authorized DVD players, I think they would be hard pressed to argue for "intrinsic superiority". the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other. When the seller's power is just used to maximize its return in the tying product market, where presumably its product enjoys some justifiable advantage over its competitors, the competitive ideal of the Sherman Act is not necessarily compromised. But if that power is used to impair competition on the merits in another market, a potentially inferior product may be insulated from competitive pressures. In the DVD player market, the MPAA gets to limit what features player manufacturers are allowed to compete on. If that isn't "impair competition on the merits in another market", I don't know what is. And from the standpoint of the consumer - whose interests the statute was especially intended to serve - the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package. One of the big ideas in Jefferson is consumer harm. They rejected the appeal of the anesthesiologist in the case because *consumers* were not being burdened. But in this case, the harm to consumers is very clear. On to some more detailed analysis. At the beginning of the opinion, four criteria are laid out for a finding of anticompetitive tying. The MPAA passes these with flying colors. Criteria 1 (a) Any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case the analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, consideration must be given to whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement. Pp. 9-18. So, to meet this test we must see (1) There are two seperate products. This is obvious. They are sold by two seperate companies, and the MPAA would deny that they are tying the products together, requiring them to recognize a distinction. (2) P's have market power. Again, they totally control the US (and world) movie and DVD industry. Again, from Jefferson Parish When the seller's share of the market is high, see Times-Picayune Publishing Co. v. United States, 345 U.S., at 611 -613, or when the seller offers a unique product that competitors are not able to offer, see Fortner I, 394 U.S., at 504 -506, and n. 2, the Court has held that the likelihood that market power exists and . . . is sufficent. . . The MPAA meets both of these tests. (3) They have used this power to force the acceptance of the tying arrangement. This is the purpose of CSS. See our extensive threads on manufacturer control, and also the fact that they are suing to prevent the use of players not authorized by a group with which they have an agreement. Criteria 2 (b) No tying arrangement can exist here unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital [466 U.S. 2, 3] services. The fact that the exclusive contract requires purchase of two services that would otherwise be purchased separately does not make the contract illegal. Only if patients are forced to purchase the contracting firm's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of the firm. There is clear demand for purchase of DVD players seperate from the restrictions imposed by the producers of DVDs. Also, as we have seen previously, the market power held by the MPAA is clear. There is no possibility of using a competing movie industry ( :-) to produce DVDs for use with alternative DVD players. Criteria 3 (c) The record does not provide a basis for applying the per se rule against tying to the arrangement in question. While such factors as the Court of Appeals relied on in rendering its decision - the prevalence of health insurance as eliminating a patient's incentive to compare costs, and patients' lack of sufficient information to compare the quality of the medical care provided by competing hospitals - may generate "market power" in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying. Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. The fact that patients of the hospital lack price consciousness will not force them to take an anesthesiologist whose services they do not want. Similarly, if the patients cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement. Again, see the earlier analysis of market power. Clearly, purchases that would not otherwise be made are being forced by the tying arrangement in our case. This is precisely what this opinion specifies as illegal, and precisely the test Hyde failed to surmount. Criteria 4 This criteria presumes that per se anticompetitive behavior had not been found, and that the market conditions therefore required analysis. (d) In order to prevail in the absence of per se liability, respondent has the burden of showing that the challenged contract violated the Sherman Act because it unreasonably restrained competition, and no such showing has been made. The evidence is insufficient to provide a basis for finding that the contract, as it actually operates in the market, has unreasonably restrained competition. All the record establishes is that the choice of anesthesiologists at the hospital has been limited to one of the four doctors who are associated with the contracting firm. If respondent were admitted to the hospital's staff, the range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anesthesiologist would nevertheless remain. There is no evidence that the price, quality, or supply or demand for either the "tying product" or the "tied product" has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the contract. Price - The existance of widely distributed, free players might have an impact on the price of other players. Quality - It might also encourage other players, not based around DeCSS, to offer similar features, improving competition and benifiting consumers. Supply - Players are no longer available merely from those people who have paid money to an MPAA-affiliated organization. Demand - Now that players can be used for a variety of fair-use purposes, there may be more demand. If the harm to consumers could get Microsoft busted for Win98/IE, then the harm to consumers is astronomical in this case. In summary, this ruling lays down a number of questions that must be satisfied for a finding of illegal and anticompetitive tying. (1) Is there tying? The Court's standard for this is combination "of two distinguishable services in a single transaction." There is also a requirement that "two distinguishable product markets be involved". In our case, the existence of two markets is clear, and it is similarly clear (and stated in several of P's depositions) that they view the purchase of a DVDCCA-licensed player to be a requirement for legal use of a DVD. (2) Is there market power? Since P's are the US's only significant, legal provider of legal DVD Video discs, there is obvious market power. (3) Does the tying arrangement force purchases that would not otherwise be made? Yes. Some of us might want to get our DVD players from people other than those authorized by the DVDCCA. Finally, if the burden for per se liability has not been met, then (4) Does the tying arrangement unreasonably restrain competition? First, I think we have made the per se case. Second, according the the MPAA, there is no legal competiontion outside of the bounds they have set (agreements and money with DVDCCA). That sounds like restraint of competition to me. In the end, the Court notes that in Jefferson Parish, the major impact of the tying was in the market for anesthesiologists, not anesthesiology. Yet the supposed anticompetitive effects were in the latter market. In our case, the lack of competition and the restraint of trade are both in the market for DVD players. In short, when we are done with them, they should wish they had never heard of Jefferson Parish. IANAL, but I wouldn't want to be thinking about tying for Proskauer. Interesting footnotes include 10, 20, 34, 39 and 51. I encourage everyone to read this case. It made my day. [1] http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=466&page=2 [2] http://eon.law.harvard.edu/archive/dvd-discuss/msg03989.html sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:29:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00411 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:29:02 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA00408 for ; Thu, 6 Jul 2000 14:29:00 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id OAA02397 for ; Thu, 6 Jul 2000 14:14:13 -0500 Message-ID: <3964DBF7.F792D388@mninter.net> Date: Thu, 06 Jul 2000 14:20:23 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Forgive me a reply to my own post to belabor my point: I wrote: > You're right. Allow me to rephrase: We shouldn't be *obligated* to > chase down their *very pivotal* definition of authorized. If that > definition is hard to come by, it must therefore be unenforceable. - From 1201(a)(3)(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" The Plaintiffs must assert an "authority" for circumvention to exist. The same argument has been made on the list about "effectively controls access" in (a)(3)(B). The certainty with which authority can be understood equals the certainty with which circumvention can be proven. Call it my DMCA Certainty Principle. If the plaintiffs keep the nature of their authority indeterminate, circumvention is indeterminate. This is an unacceptable circumstance, and certainly not one that benefits from 1201 protection or could be possibly litigated. In fact, here's a little something applicable I borrowed from the bill of rights: > Amendment VI > In all criminal prosecutions, the accused shall enjoy the right to > > [...] be informed of the nature and cause of the accusation The fact that we forced to speculate about the nature of their authority model at all implies that the authority model is void in the context of 1201. Prosecuting based on an indeterminate or secret authority model necessarily violates the sixth amendment. The case should be dismissed, pronto. That we were forced to divine their claim to "authority" through testimony in this case, instead of through direct and valid claims to authority at the sale of a DVD or player, certifies that the authority claim is bogus. CSS does not qualify for 1201 protection. Unless someone can explain to me how authority can be claimed, but its nature withheld or indeterminate, this lawsuit is frivilous. Chris, no constitutional scholar, but he knows what he likes. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWTb9Dik9YADgV7kEQJ+IACg+gHFHqwT6HpctVw6L3ojrmau46AAoNCc GGr5fUsTNr6WXSqqHZUO6qcC =3HTH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:31:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA00579 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:31:43 -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 OAA00576 for ; Thu, 6 Jul 2000 14:31:42 -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 QAA02209; Thu, 6 Jul 2000 16:32:57 -0400 Message-Id: <200007062032.QAA02209@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Junger on Kaplan on Junger In-reply-to: Your message of "Thu, 06 Jul 2000 10:59:09 PDT." <20000706105909.R9454@zork.net> Date: Thu, 06 Jul 2000 16:32:27 -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: : Peter D. Junger writes: : : > Seth David Schoen writes: : > : > : > Assuming that we submit an amicus brief for the trial (which we ought : > : > to start working on), I think 1203(b)(1) + Junger should be a major : > : > component of it. It would also be a good idea to recruit some law : > : > professor types write 1 pagers on this point. : > : : > : Like, say, Professor Junger? :-) : > : > _Junger_ is the name of a case. Unlike the defendant Secretary of State, : > my position or style was not included in the caption of the action. I : > do not normally use the style ``Professor.'' If one must stick something : > before my name, I would prefer just a simple ``Mr.'' : : You do seem like a law professor with a good understanding of the : implications of the _Junger_ case, though, if I may say so. If the : defense here considers it useful, could you be recruited to write : about it? : I think I misread your initial message; I thought that you were referring to the case, not to me. Sorry for the hasty reading. I do plan to write about it, and have a several page explanation that I wrote for my 98 year old mother that is now looking for a home in some popular journal. On the other hand, I find it very inhibiting to be write about a pending case in which I am plaintiff. And there is the great difficulty that the regulations, and the unresolved posture of the case, still keep me from publishing some materials that I would consider a necessary part, or at least background, to any explanation that I might make. If anyone working for the defense wants to ask me about the issues in _Junger_ I would be happy to respond. And I do hope to have something written within a couple of weeks that may be helpful to your cause. (Of course, the end always seems just a couple of weeks away.) -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:39:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01092 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:39:28 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01089 for ; Thu, 6 Jul 2000 14:39:27 -0400 Received: from 209-122-247-251.s251.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.251] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 13AISY-00026U-00 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 16:41:22 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Date: Thu, 6 Jul 2000 16:32:14 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <3964DBF7.F792D388@mninter.net> MIME-Version: 1.0 Message-Id: <00070616400700.00791@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 06 Jul 2000, you wrote: > > The certainty with which authority can be understood equals the > certainty with which circumvention can be proven. Call it my DMCA > Certainty Principle. If the plaintiffs keep the nature of their > authority indeterminate, circumvention is indeterminate. This is an > unacceptable circumstance, and certainly not one that benefits from > 1201 protection or could be possibly litigated. In fact, here's a > little something applicable I borrowed from the bill of rights: > > > Amendment VI > > In all criminal prosecutions, the accused shall enjoy the right to > > > [...] be informed of the nature and cause of the accusation > > The fact that we forced to speculate about the nature of their > authority model at all implies that the authority model is void in > the context of 1201. Prosecuting based on an indeterminate or secret > authority model necessarily violates the sixth amendment. The case > should be dismissed, pronto. But Universal et al vs Riemierdes (sp?) is not a criminal prosecution. It is a civil case. A literal reading of Amendment 6 ("In all _criminal_ ...) would not your position. IANAL, but I suspect that a literal reading is what currently holds. (INS proceedings come to mind) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:46:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01181 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:46:13 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01178 for ; Thu, 6 Jul 2000 14:46:11 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id PAA13665 for ; Thu, 6 Jul 2000 15:47:50 -0500 Message-ID: <3964F1BC.CF86A0EF@mninter.net> Date: Thu, 06 Jul 2000 15:53:16 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <3964DBF7.F792D388@mninter.net> <00070616400700.00791@yuggoth> 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 > But Universal et al vs Riemierdes (sp?) is not a criminal prosecution. It is a > civil case. A literal reading of Amendment 6 ("In all _criminal_ ...) would not > your position. IANAL, but I suspect that a literal reading is what currently > holds. (INS proceedings come to mind) Point taken. My mistake. But I have a suspicion that there is a similar principle that can be applied in a civil case. My lack of understanting has been proved. My indignation still stands, and I expect a lawyer might be able to support the general assertions in my message despite my misapplication of the constitution. :) Chris, (doh) -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:58:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01457 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:58:13 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01454 for ; Thu, 6 Jul 2000 14:58:12 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e66L08r09951 for ; Thu, 6 Jul 2000 16:00:08 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id QAA01490 for ; Thu, 6 Jul 2000 16:00:07 -0500 (CDT) Date: Thu, 6 Jul 2000 16:00:06 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Why I love Justice Stevens Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am currently reading Jefferson Parish Hospital v Hyde[1] (as reccomended by Doug[2]), and believe me, the P's never want this case mentioned in court. It sets a clear standard for a finding of anti-competitive tying, and that standard is one that the P's have met with flying colors. On to the analysis. First, a quote: Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such "forcing" is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated. 'the sellers exploitation' - agreements with DVDCCA 'control over the tying product' - the P's have ~100% of DVD market 'force the buyer' - other options are illegal (according to them) under 1201 'tied product' - DVD player manufactured by DVDCCA member 'did not want at all' - I'm sure there's some use of VOB files other than playing them 'might have prefered to purchase elsewhere' - say, from LiViD 'on different terms' - like, free and GPL'd I think this makes our case for Sherman/Clayton Act violation right there. But it keeps going. Before actual analysis, a few more choice quotes. By conditioning his sale of one commodity on [466 U.S. 2, 13] the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the `tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the `tied' product would convince freely choosing buyers to select it over others anyway." Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 605 (1953). 19 Given the restrictions on current DVDCCA-authorized DVD players, I think they would be hard pressed to argue for "intrinsic superiority". the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other. When the seller's power is just used to maximize its return in the tying product market, where presumably its product enjoys some justifiable advantage over its competitors, the competitive ideal of the Sherman Act is not necessarily compromised. But if that power is used to impair competition on the merits in another market, a potentially inferior product may be insulated from competitive pressures. In the DVD player market, the MPAA gets to limit what features player manufacturers are allowed to compete on. If that isn't "impair competition on the merits in another market", I don't know what is. And from the standpoint of the consumer - whose interests the statute was especially intended to serve - the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package. One of the big ideas in Jefferson is consumer harm. They rejected the appeal of the anesthesiologist in the case because *consumers* were not being burdened. But in this case, the harm to consumers is very clear. On to some more detailed analysis. At the beginning of the opinion, four criteria are laid out for a finding of anticompetitive tying. The MPAA passes these with flying colors. Criteria 1 (a) Any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case the analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, consideration must be given to whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement. Pp. 9-18. So, to meet this test we must see (1) There are two seperate products. This is obvious. They are sold by two seperate companies, and the MPAA would deny that they are tying the products together, requiring them to recognize a distinction. (2) P's have market power. Again, they totally control the US (and world) movie and DVD industry. Again, from Jefferson Parish When the seller's share of the market is high, see Times-Picayune Publishing Co. v. United States, 345 U.S., at 611 -613, or when the seller offers a unique product that competitors are not able to offer, see Fortner I, 394 U.S., at 504 -506, and n. 2, the Court has held that the likelihood that market power exists and . . . is sufficent. . . The MPAA meets both of these tests. (3) They have used this power to force the acceptance of the tying arrangement. This is the purpose of CSS. See our extensive threads on manufacturer control, and also the fact that they are suing to prevent the use of players not authorized by a group with which they have an agreement. Criteria 2 (b) No tying arrangement can exist here unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital [466 U.S. 2, 3] services. The fact that the exclusive contract requires purchase of two services that would otherwise be purchased separately does not make the contract illegal. Only if patients are forced to purchase the contracting firm's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of the firm. There is clear demand for purchase of DVD players seperate from the restrictions imposed by the producers of DVDs. Also, as we have seen previously, the market power held by the MPAA is clear. There is no possibility of using a competing movie industry ( :-) to produce DVDs for use with alternative DVD players. Criteria 3 (c) The record does not provide a basis for applying the per se rule against tying to the arrangement in question. While such factors as the Court of Appeals relied on in rendering its decision - the prevalence of health insurance as eliminating a patient's incentive to compare costs, and patients' lack of sufficient information to compare the quality of the medical care provided by competing hospitals - may generate "market power" in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying. Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. The fact that patients of the hospital lack price consciousness will not force them to take an anesthesiologist whose services they do not want. Similarly, if the patients cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement. Again, see the earlier analysis of market power. Clearly, purchases that would not otherwise be made are being forced by the tying arrangement in our case. This is precisely what this opinion specifies as illegal, and precisely the test Hyde failed to surmount. Criteria 4 This criteria presumes that per se anticompetitive behavior had not been found, and that the market conditions therefore required analysis. (d) In order to prevail in the absence of per se liability, respondent has the burden of showing that the challenged contract violated the Sherman Act because it unreasonably restrained competition, and no such showing has been made. The evidence is insufficient to provide a basis for finding that the contract, as it actually operates in the market, has unreasonably restrained competition. All the record establishes is that the choice of anesthesiologists at the hospital has been limited to one of the four doctors who are associated with the contracting firm. If respondent were admitted to the hospital's staff, the range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anesthesiologist would nevertheless remain. There is no evidence that the price, quality, or supply or demand for either the "tying product" or the "tied product" has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the contract. Price - The existance of widely distributed, free players might have an impact on the price of other players. Quality - It might also encourage other players, not based around DeCSS, to offer similar features, improving competition and benifiting consumers. Supply - Players are no longer available merely from those people who have paid money to an MPAA-affiliated organization. Demand - Now that players can be used for a variety of fair-use purposes, there may be more demand. If the harm to consumers could get Microsoft busted for Win98/IE, then the harm to consumers is astronomical in this case. In summary, this ruling lays down a number of questions that must be satisfied for a finding of illegal and anticompetitive tying. (1) Is there tying? The Court's standard for this is combination "of two distinguishable services in a single transaction." There is also a requirement that "two distinguishable product markets be involved". In our case, the existence of two markets is clear, and it is similarly clear (and stated in several of P's depositions) that they view the purchase of a DVDCCA-licensed player to be a requirement for legal use of a DVD. (2) Is there market power? Since P's are the US's only significant, legal provider of legal DVD Video discs, there is obvious market power. (3) Does the tying arrangement force purchases that would not otherwise be made? Yes. Some of us might want to get our DVD players from people other than those authorized by the DVDCCA. Finally, if the burden for per se liability has not been met, then (4) Does the tying arrangement unreasonably restrain competition? First, I think we have made the per se case. Second, according the the MPAA, there is no legal competiontion outside of the bounds they have set (agreements and money with DVDCCA). That sounds like restraint of competition to me. In the end, the Court notes that in Jefferson Parish, the major impact of the tying was in the market for anesthesiologists, not anesthesiology. Yet the supposed anticompetitive effects were in the latter market. In our case, the lack of competition and the restraint of trade are both in the market for DVD players. In short, when we are done with them, they should wish they had never heard of Jefferson Parish. IANAL, but I wouldn't want to be thinking about tying for Proskauer. Interesting footnotes include 10, 20, 34, 39 and 51. I encourage everyone to read this case. It made my day. [1] http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=466&page=2 [2] http://eon.law.harvard.edu/archive/dvd-discuss/msg03989.html sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 14:58:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01463 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:58:14 -0400 Received: from dial121.roadrunner.com (sf-du121.cybermesa.com [209.12.75.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA01452 for ; Thu, 6 Jul 2000 14:58:08 -0400 Received: (from paul@localhost) by dial121.roadrunner.com (8.8.7/8.8.7) id PAA01683 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 15:00:46 -0600 Date: Thu, 6 Jul 2000 15:00:45 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Message-ID: <20000706150044.A1548@localhost> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Thu, Jul 06, 2000 at 12:11:34PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 06, 2000 at 12:11:34PM -0600, John Zulauf wrote: > Paul Fenimore wrote > > > If the court agrees that indistinguishability means > > the only the player end need be analyzed, then we've > > got a hammer to go after "effectively control access." > > Moreover it attacks the essence of "circumvention." One attack is that a measure must "effectively control access". If the measure is not "effective[]", then 1201 doesn't govern descrambling a work scrambled with the ineffective measure. No 1201 coverage --> no circumvention is possible. > If DeCSS does no more > than CSS then DeCSS is not a circumvention of CSS but a "fair use" compliant > implementation. Just to be clear, "circumvention" is not what the decoder does. The decoder descrambles or decrypts. Particular acts of descrambling and decryption are then categorized as "circumvention" and non-circumvention (*) depending on whether the act was unauthorized or authorized. You are correct that fair-use comes into play because it is hard (impossible) to see how fair use is preserved unless there is blanket authorization in some circumstances --- regardless of what the copyright owner wants. (*) N.B. there are two subsets of non-circumventing acts we're interested in. One is legitimate access, the other is say, painting houses. I mention that non-circumvention includes every act that isn't circumvention, whether it is 1201-access or not, because of the way 1201(a)(2) is worded. If DeCSS were (hypothetically) useful for painting houses, that would exempt it from (a)(2). > Again -- DeCSS doesn't circumvent CSS it implements it. Particular acts are circumventing; the law doesn't know what a circumventing device is. Kaplan doesn't believe this, but he's wrong. (a)(1) talks about acts. (a)(2) gives tests, including whether a device lacks significant use other than _acts_ of circumvention. If it fails those tests, it's trafficking can be prohibited. 1201 never requires that a device proper be "circumventing". The question isn't whether a device does certain things, but if (i) it does those things without proper authority and (ii) lacks other, non-circumventing, uses. CSS decoders provide 1201-access. Whether the act of access is circumvention or legitimate access depends on authorization, not the CSS decoder. > The P's will complain, but "DeCSS copies the ciphertext into cleartext" -- > exactly what CSS does. The only difference is that CSS writes that clear > text to the video subsystem where it can be RIP'd and written to the hard > drive. DeCSS copies the cleartext directly to the hard drive. Yes, all players make copies in their normal operation. I think it is necessary to carefully distinguish CSS from copy control. CSS is 1201-access control. The descrambling of a CSS'ed work necessary to comprehend (i.e. make "non-copying" use) can either come before or after an act of (illegal) copying. (The copies you are talking about in the paragraph above are probably fair use copies necessary to operate a program. Even if that same exemption does not apply to the copies CSS makes, (a) copying is irrelevant to establishing a 1201(a) violation, (b) they are probably fair use under space-shifting and/or backup.) Something which can either come before or after an illegal act sounds more like it is irrelevant to the illegal act (of copying), rather than being "prophylactic" as Kaplan says. (For example, see the Jan. memorandum opinion, or the June 27th transcript). 1201-access control/encryption/scrambling is not copy control. > So both DeCSS and CSS expose the cleartext of the copyrighted contents to > the risk of "infinite perfect duplication." The ciphertext is digital too. It exposes the work to nearly perfect duplication. There isn't any real difference between the ciphertext and the plaintext as far as propagating a chain of copies. In some circumstance there will be a difference for purposes of deciphering, but that's not copy control, nor is it "effectively" copy control. It is 1201-access control. > While one allows duplication of > an MPEG compressed image and the other capture and duplication of > non-compressed video. With Shamos they cannot argue these are meaningfully > different -- the tools to convert one to the other are freely available. > Shamos purports to show how "easy" it is to MPEG encode video with Divx. > Given that the MPEG ripper would have to decode and encode the compressed > video, compression of an uncompressed stream (at a lower compression ratio > to recreate the DVD quality) would be easier and faster. Even without > compression, accepting Shamos's claims of network bandwidth growth, the > uncompressed video stream soon will be a practical, plausible piracy risk. > Again reenforcing the notion that CSS places the content (the MOVIE itself) > to exactly the same extent that DeCSS does. For someone with an illegal > profit motive, CSS is just as good as DeCSS for piracy. > > It seems that Shamos supports the idea that DeCSS implements not circumvents > CSS. > > John Zulauf > private netizen > > PS. > > Here's a bit of logic I'm sketchy on. Thoughts? > > Hmmm, one could argue that CSS software players circumvent to exactly same > extent that DeCSS does. Modulo what I've been saying about acts of circumvention vs. devices that descramble, yes. The authority cannot attach to the DVD player. The function of the DeCSS decoder as far as 1201-access is concerned is 1:1 with the Xing player (since the date DeCSS was released, the Xing player key has been revoked). > The only difference -- the player license NOT the > authorization to play the DVD in the first place. Since clearly CSS cannot > circumvent itself, it remains that there is no "circumvention" in the legal > sense, since a player MUST first convert the content to clear text. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 15:04:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01648 for dvd-discuss-outgoing; Thu, 6 Jul 2000 15:04:26 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01645 for ; Thu, 6 Jul 2000 15:04:23 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id NAA18187 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 13:21:31 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: THIS IS GOLD! (Was Re: [dvd-discuss] Why I love Justice Stevens) Date: Thu, 6 Jul 2000 13:20:09 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00070613213105.05357@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Someone make sure the defense knows about this! --Jim (Russell) On Thu, 06 Jul 2000, you wrote: > I am currently reading Jefferson Parish Hospital v Hyde[1] (as reccomended > by Doug[2]), and believe me, the P's never want this case mentioned in > court. It sets a clear standard for a finding of anti-competitive tying, > and that standard is one that the P's have met with flying colors. Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 15:15:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA01782 for dvd-discuss-outgoing; Thu, 6 Jul 2000 15:15:55 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA01779 for ; Thu, 6 Jul 2000 15:15:54 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA02674; Thu, 6 Jul 2000 17:18:29 -0400 Message-ID: <3964F7A5.365A9F9B@mit.edu> Date: Thu, 06 Jul 2000 17:18:29 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.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 Chris Moseng wrote: > The fact that we forced to speculate about the nature of their > authority model at all implies that the authority model is void in > the context of 1201. Prosecuting based on an indeterminate or secret > authority model necessarily violates the sixth amendment. The case > should be dismissed, pronto. > > That we were forced to divine their claim to "authority" through > testimony in this case, instead of through direct and valid claims to > authority at the sale of a DVD or player, certifies that the > authority claim is bogus. CSS does not qualify for 1201 protection. > Unless someone can explain to me how authority can be claimed, but > its nature withheld or indeterminate, this lawsuit is frivilous. Plaintiffs will say there is no need to speculate about their authority model. They are (or represent) the copyright owner. When they say descrambling is authorized it is. When they say descrambling is not it is not. They have said DeCSS is not authorized, therefore it is not authorized. If a consumer is confused about whether or not a particular method of accessing a copyrighted work is authorized, he or she should contact the MPAA. This is _exactly_ the model the RIAA says applies to fair use: 'Generally speaking, you are not allowed to take the "value" of a song without permission, and sometimes that value is found even in a three-second clip. When in doubt, it is always wise to check, because in many cases even a small clip of a song may not be "fair use."' from http://www.riaa.org/Copyright-Laws-2.cfm - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 15:45:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA02064 for dvd-discuss-outgoing; Thu, 6 Jul 2000 15:45:54 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA02061 for ; Thu, 6 Jul 2000 15:45:52 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id QAA21258 for ; Thu, 6 Jul 2000 16:47:29 -0500 Message-ID: <3964FFA8.BBD9B6C8@mninter.net> Date: Thu, 06 Jul 2000 16:52:40 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@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 > Plaintiffs will say there is no need to speculate about their > authority model. They are (or represent) the copyright owner. > When they say descrambling is authorized it is. When they say > descrambling is not it is not. They have said DeCSS is not > authorized, therefore it is not authorized. If a consumer is > confused about whether or not a particular method of accessing > a copyrighted work is authorized, he or she should contact the > MPAA. This is _exactly_ the model the RIAA says applies to > fair use: This model for authority is impermissible and untenable because: 1. Such authority is indeterminable a priori because 2. It is a tautology. 3. It is not specified at sale of either DVDs or their player, so consumers cannot reasonably be held to it. 4. It does not compute when applied to a DVD player that is unauthorized, but that it was unauthorized is unknown to the user (including all DeCSS-type unauthorized players). 6. It certifies anti-competitive tying. 7. They have testified that there is nobody to ask whether an access is authorized. 8. They have testified that there is no use-based determination for authorization. 9. It hinders fair use. 10. etc... While this might the only model for authority they can still claim and attack DeCSS, they will ever be able to claim such a model for authority and retain their dignity, much less their control over CSS. I'd love to see them try it. Meanwhile the trial date approaches, and they still haven't delineated their model, even to claim the above. Due process? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 16:03:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18406 for dvd-discuss-outgoing; Thu, 6 Jul 2000 14:55:02 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18403 for ; Thu, 6 Jul 2000 14:55:01 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e66Ivur01354 for ; Thu, 6 Jul 2000 13:57:56 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id NAA29586 for ; Thu, 6 Jul 2000 13:57:55 -0500 (CDT) Date: Thu, 6 Jul 2000 13:57:54 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Why I love Justice Stevens Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am currently reading Jefferson Parish Hospital v Hyde[1] (as reccomended by Doug[2]), and believe me, the P's never want this case mentioned in court. It sets a clear standard for a finding of anti-competitive tying, and that standard is one that the P's have met with flying colors. On to the analysis. First, a quote: Our cases have concluded that the essential characteristic of an invalid tying arrangement lies in the seller's exploitation of its control over the tying product to force the buyer into the purchase of a tied product that the buyer either did not want at all, or might have preferred to purchase elsewhere on different terms. When such "forcing" is present, competition on the merits in the market for the tied item is restrained and the Sherman Act is violated. 'the sellers exploitation' - agreements with DVDCCA 'control over the tying product' - the P's have ~100% of DVD market 'force the buyer' - other options are illegal (according to them) under 1201 'tied product' - DVD player manufactured by DVDCCA member 'did not want at all' - I'm sure there's some use of VOB files other than playing them 'might have prefered to purchase elsewhere' - say, from LiViD 'on different terms' - like, free and GPL'd I think this makes our case for Sherman/Clayton Act violation right there. But it keeps going. Before actual analysis, a few more choice quotes. By conditioning his sale of one commodity on [466 U.S. 2, 13] the purchase of another, a seller coerces the abdication of buyers' independent judgment as to the `tied' product's merits and insulates it from the competitive stresses of the open market. But any intrinsic superiority of the `tied' product would convince freely choosing buyers to select it over others anyway." Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 605 (1953). 19 Given the restrictions on current DVDCCA-authorized DVD players, I think they would be hard pressed to argue for "intrinsic superiority". the law draws a distinction between the exploitation of market power by merely enhancing the price of the tying product, on the one hand, and by attempting to impose restraints on competition in the market for a tied product, on the other. When the seller's power is just used to maximize its return in the tying product market, where presumably its product enjoys some justifiable advantage over its competitors, the competitive ideal of the Sherman Act is not necessarily compromised. But if that power is used to impair competition on the merits in another market, a potentially inferior product may be insulated from competitive pressures. In the DVD player market, the MPAA gets to limit what features player manufacturers are allowed to compete on. If that isn't "impair competition on the merits in another market", I don't know what is. And from the standpoint of the consumer - whose interests the statute was especially intended to serve - the freedom to select the best bargain in the second market is impaired by his need to purchase the tying product, and perhaps by an inability to evaluate the true cost of either product when they are available only as a package. One of the big ideas in Jefferson is consumer harm. They rejected the appeal of the anesthesiologist in the case because *consumers* were not being burdened. But in this case, the harm to consumers is very clear. On to some more detailed analysis. At the beginning of the opinion, four criteria are laid out for a finding of anticompetitive tying. The MPAA passes these with flying colors. Criteria 1 (a) Any inquiry into the validity of a tying arrangement must focus on the market or markets in which the two products are sold, for that is where the anticompetitive forcing has its impact. Thus, in this case the analysis of the tying issue must focus on the hospital's sale of services to its patients, rather than its contractual arrangements with the providers of anesthesiological services. In making that analysis, consideration must be given to whether petitioners are selling two separate products that may be tied together, and, if so, whether they have used their market power to force their patients to accept the tying arrangement. Pp. 9-18. So, to meet this test we must see (1) There are two seperate products. This is obvious. They are sold by two seperate companies, and the MPAA would deny that they are tying the products together, requiring them to recognize a distinction. (2) P's have market power. Again, they totally control the US (and world) movie and DVD industry. Again, from Jefferson Parish When the seller's share of the market is high, see Times-Picayune Publishing Co. v. United States, 345 U.S., at 611 -613, or when the seller offers a unique product that competitors are not able to offer, see Fortner I, 394 U.S., at 504 -506, and n. 2, the Court has held that the likelihood that market power exists and . . . is sufficent. . . The MPAA meets both of these tests. (3) They have used this power to force the acceptance of the tying arrangement. This is the purpose of CSS. See our extensive threads on manufacturer control, and also the fact that they are suing to prevent the use of players not authorized by a group with which they have an agreement. Criteria 2 (b) No tying arrangement can exist here unless there is a sufficient demand for the purchase of anesthesiological services separate from hospital services to identify a distinct product market in which it is efficient to offer anesthesiological services separately from hospital [466 U.S. 2, 3] services. The fact that the exclusive contract requires purchase of two services that would otherwise be purchased separately does not make the contract illegal. Only if patients are forced to purchase the contracting firm's services as a result of the hospital's market power would the arrangement have anticompetitive consequences. If no forcing is present, patients are free to enter a competing hospital and to use another anesthesiologist instead of the firm. There is clear demand for purchase of DVD players seperate from the restrictions imposed by the producers of DVDs. Also, as we have seen previously, the market power held by the MPAA is clear. There is no possibility of using a competing movie industry ( :-) to produce DVDs for use with alternative DVD players. Criteria 3 (c) The record does not provide a basis for applying the per se rule against tying to the arrangement in question. While such factors as the Court of Appeals relied on in rendering its decision - the prevalence of health insurance as eliminating a patient's incentive to compare costs, and patients' lack of sufficient information to compare the quality of the medical care provided by competing hospitals - may generate "market power" in some abstract sense, they do not generate the kind of market power that justifies condemnation of tying. Tying arrangements need only be condemned if they restrain competition on the merits by forcing purchases that would not otherwise be made. The fact that patients of the hospital lack price consciousness will not force them to take an anesthesiologist whose services they do not want. Similarly, if the patients cannot evaluate the quality of anesthesiological services, it follows that they are indifferent between certified anesthesiologists even in the absence of a tying arrangement. Again, see the earlier analysis of market power. Clearly, purchases that would not otherwise be made are being forced by the tying arrangement in our case. This is precisely what this opinion specifies as illegal, and precisely the test Hyde failed to surmount. Criteria 4 This criteria presumes that per se anticompetitive behavior had not been found, and that the market conditions therefore required analysis. (d) In order to prevail in the absence of per se liability, respondent has the burden of showing that the challenged contract violated the Sherman Act because it unreasonably restrained competition, and no such showing has been made. The evidence is insufficient to provide a basis for finding that the contract, as it actually operates in the market, has unreasonably restrained competition. All the record establishes is that the choice of anesthesiologists at the hospital has been limited to one of the four doctors who are associated with the contracting firm. If respondent were admitted to the hospital's staff, the range of choice would be enlarged, but the most significant restraints on the patient's freedom to select a specific anesthesiologist would nevertheless remain. There is no evidence that the price, quality, or supply or demand for either the "tying product" or the "tied product" has been adversely affected by the exclusive contract, and no showing that the market as a whole has been affected at all by the contract. Price - The existance of widely distributed, free players might have an impact on the price of other players. Quality - It might also encourage other players, not based around DeCSS, to offer similar features, improving competition and benifiting consumers. Supply - Players are no longer available merely from those people who have paid money to an MPAA-affiliated organization. Demand - Now that players can be used for a variety of fair-use purposes, there may be more demand. If the harm to consumers could get Microsoft busted for Win98/IE, then the harm to consumers is astronomical in this case. In summary, this ruling lays down a number of questions that must be satisfied for a finding of illegal and anticompetitive tying. (1) Is there tying? The Court's standard for this is combination "of two distinguishable services in a single transaction." There is also a requirement that "two distinguishable product markets be involved". In our case, the existence of two markets is clear, and it is similarly clear (and stated in several of P's depositions) that they view the purchase of a DVDCCA-licensed player to be a requirement for legal use of a DVD. (2) Is there market power? Since P's are the US's only significant, legal provider of legal DVD Video discs, there is obvious market power. (3) Does the tying arrangement force purchases that would not otherwise be made? Yes. Some of us might want to get our DVD players from people other than those authorized by the DVDCCA. Finally, if the burden for per se liability has not been met, then (4) Does the tying arrangement unreasonably restrain competition? First, I think we have made the per se case. Second, according the the MPAA, there is no legal competiontion outside of the bounds they have set (agreements and money with DVDCCA). That sounds like restraint of competition to me. In the end, the Court notes that in Jefferson Parish, the major impact of the tying was in the market for anesthesiologists, not anesthesiology. Yet the supposed anticompetitive effects were in the latter market. In our case, the lack of competition and the restraint of trade are both in the market for DVD players. In short, when we are done with them, they should wish they had never heard of Jefferson Parish. IANAL, but I wouldn't want to be thinking about tying for Proskauer. Interesting footnotes include 10, 20, 34, 39 and 51. I encourage everyone to read this case. It made my day. [1] http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=466&page=2 [2] http://eon.law.harvard.edu/archive/dvd-discuss/msg03989.html sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 16:04:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02360 for dvd-discuss-outgoing; Thu, 6 Jul 2000 16:04:36 -0400 Received: from orange.fenimore.org (sf-du193.cybermesa.com [209.12.75.193]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02357 for ; Thu, 6 Jul 2000 16:04:27 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id QAA02044 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 16:07:06 -0600 Date: Thu, 6 Jul 2000 16:07:06 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000706160705.A1897@localhost> References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3964FFA8.BBD9B6C8@mninter.net>; from moseng@mninter.net on Thu, Jul 06, 2000 at 04:52:40PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 06, 2000 at 04:52:40PM -0500, Chris Moseng wrote: > > Plaintiffs will say there is no need to speculate about their > > authority model. They are (or represent) the copyright owner. > > When they say descrambling is authorized it is. When they say > > descrambling is not it is not. They have said DeCSS is not > > authorized, therefore it is not authorized. If a consumer is > > confused about whether or not a particular method of accessing > > a copyrighted work is authorized, he or she should contact the > > MPAA. This is _exactly_ the model the RIAA says applies to > > fair use: > > This model for authority is impermissible and untenable because: > 1. Such authority is indeterminable a priori because > 2. It is a tautology. > 3. It is not specified at sale of either DVDs or their player, so > consumers cannot reasonably be held to it. > 4. It does not compute when applied to a DVD player that is > unauthorized, but that it was unauthorized is unknown to the user > (including all DeCSS-type unauthorized players). > 6. It certifies anti-competitive tying. > 7. They have testified that there is nobody to ask whether an access is > authorized. > 8. They have testified that there is no use-based determination for > authorization. > 9. It hinders fair use. > 10. etc... > > While this might the only model for authority they can still claim and > attack DeCSS, they will ever be able to claim such a model for authority > and retain their dignity, much less their control over CSS. > > I'd love to see them try it. Meanwhile the trial date approaches, and > they still haven't delineated their model, even to claim the above. Due > process? As noted, the 6th Amendment is irrelevant, but contracts are usually construed against the drafter. Take a look at Wendy Seltzer's idea for construing an access control mechanism against the implementer. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 16:17:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02458 for dvd-discuss-outgoing; Thu, 6 Jul 2000 16:17:20 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02455 for ; Thu, 6 Jul 2000 16:17:19 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id RAA24876 for ; Thu, 6 Jul 2000 17:18:59 -0500 Message-ID: <39650766.8884FAD8@mninter.net> Date: Thu, 06 Jul 2000 17:25:42 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Last one, I promise... Paul Fenimore wrote: > As noted, the 6th Amendment is irrelevant, but contracts are usually > construed against the drafter. Take a look at Wendy Seltzer's idea > for construing an access control mechanism against the implementer. Isn't it stronger to simply say "what contract?" curiously, Chris -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 16:48:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02698 for dvd-discuss-outgoing; Thu, 6 Jul 2000 16:48:01 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02695 for ; Thu, 6 Jul 2000 16:48:00 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id SAA02858; Thu, 6 Jul 2000 18:50:32 -0400 Message-ID: <39650D38.C922F2A7@mit.edu> Date: Thu, 06 Jul 2000 18:50:32 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Attacking authority [again] References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <20000706150044.A1548@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > Modulo what I've been saying about acts of circumvention vs. devices that > descramble, yes. The authority cannot attach to the DVD player. The function > of the DeCSS decoder as far as 1201-access is concerned is 1:1 with the Xing > player (since the date DeCSS was released, the Xing player key has been > revoked). We can use the revocation of the Xing player key to attack their authority model. This is an important question to ask the entity that did the revoking: (I presume the DVDCCA, but I can't find an online reference to the actual revocation). If someone uses the old Xing player (with the revoked key) to play a DVD has that person committed an act of circumvention? If no, then we can argue that the copyright owner grants authority to a player to decrypt a DVD by encrypting that DVD's title key with that player's player key. After all, the Xing player key has been revoked, but it can be legally used to play DVDs. As long as we have legitimately obtained the player key we use for decryption, we have the "authority of the copyright owner". Then the only way to attack DeCSS would be to attack the legitimacy of the player key [or keys] that it uses for decryption. Since player keys are trade secrets this is an attack on the legitimacy of the reverse engineering that obtained them --- ground on which we are [relatively] comfortable. In my opinion, this is the authority model they should claim because it is a model that fits with the structure of CSS and makes intelligible their assertion that a player and a title combine to make playing authorized. Players that aren't authorized actually can't play the disc. But I don't think they'll like this model... If yes, then we have a wedge to expose their authority model in its full horror. The next question to ask is what happens to my father if the Panasonic player key is revoked tomorrow [he owns and uses a Panasonic DVD player]. As a registered user, does he get a letter in the mail saying that it is no longer legal to use his DVD player? Can he then sue Panasonic for selling him what turned into an expensive paperweight? Or do the police come to his house when he complains to Blockbuster that his player can't play a recently released DVD? The danger I see is that the plaintiffs will try to make their post-first-sale grant of authority seem reasonable by invoking it only on DVD players that are not obtained through "legitimate channels", i.e. you only have to consult the magic authority [MPAA/DVDCCA/other pile of letters] when you can reasonably doubt the legitimacy of your player. And they can even get around consulting the magic authority by claiming that if you can reasonably doubt the legitimacy of your player it is unauthorized (since Chris Moseng pointed out that they have testified there is no one to consult). The value of this question is that it forces them to lend weight to an alternative authority model (which could make DeCSS an authorized player or, at worst, make it possible to construct unlicensed authorized players) or force them to expose how unreasonable their post-first-sale grant of authority is: by showing how it applies even to DVDs and DVD players obtained through "legitimate channels" (Blockbuster and Best Buy, in my father's case). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 16:59:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA02811 for dvd-discuss-outgoing; Thu, 6 Jul 2000 16:59:32 -0400 Received: from dial182.roadrunner.com (sf-du182.cybermesa.com [209.12.75.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA02808 for ; Thu, 6 Jul 2000 16:59:30 -0400 Received: (from paul@localhost) by dial182.roadrunner.com (8.8.7/8.8.7) id RAA02343 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 17:02:10 -0600 Date: Thu, 6 Jul 2000 17:02:09 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000706170208.A2227@localhost> References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39650766.8884FAD8@mninter.net>; from moseng@mninter.net on Thu, Jul 06, 2000 at 05:25:42PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 06, 2000 at 05:25:42PM -0500, Chris Moseng wrote: > Last one, I promise... > > Paul Fenimore wrote: > > As noted, the 6th Amendment is irrelevant, but contracts are usually > > construed against the drafter. Take a look at Wendy Seltzer's idea > > for construing an access control mechanism against the implementer. > > Isn't it stronger to simply say "what contract?" The part about contract is an analogy. The technological measure, even if it is ineffective, even if the authority model is broken, exists, and the D's are being sued over that measure. Construing the measure against the implementer says roughly, "if the implementer sets up a measure that grabs too much, they bear the risk that the courts will find the scheme invalid." If the scheme tries to "protect" too much, then that's tough for the implementer, not the user. The user gets to keep their other uses, even if the implementor loses something they are otherwise entitled to. If a broken authority model would allow the implementer to make arbitrary claims at a later time, then that pretty clearly permits grabbing. It's a bit beyond "actually grabs" to say "permits grabbing" by virtue of vagueness, but it's worth considering. The remedy for copyright abuse is suspension of the copyright until the abuse is corrected. This is not too far from an argument that the remedy for paracopyright abuse is suspension of the access control until the abuse is remedied. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 18:55:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA03969 for dvd-discuss-outgoing; Thu, 6 Jul 2000 18:55:28 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA03966 for ; Thu, 6 Jul 2000 18:55:26 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13AMSI-0006HG-00; Thu, 06 Jul 2000 17:57:22 -0700 Date: Thu, 6 Jul 2000 17:57:22 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Attacking authority [again] Message-ID: <20000706175721.X9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <20000706150044.A1548@localhost> <39650D38.C922F2A7@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <39650D38.C922F2A7@mit.edu>; from ravi_n@mit.edu on Thu, Jul 06, 2000 at 06:50:32PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Paul Fenimore wrote: > > Modulo what I've been saying about acts of circumvention vs. devices that > > descramble, yes. The authority cannot attach to the DVD player. The function > > of the DeCSS decoder as far as 1201-access is concerned is 1:1 with the Xing > > player (since the date DeCSS was released, the Xing player key has been > > revoked). > > We can use the revocation of the Xing player key to attack their > authority > model. This is an important question to ask the entity that did the > revoking: > (I presume the DVDCCA, but I can't find an online reference to the > actual > revocation). > > If someone uses the old Xing player (with the revoked key) to play a DVD > has > that person committed an act of circumvention? > > If no, then we can argue that the copyright owner grants authority to a > player to decrypt a DVD by encrypting that DVD's title key with that > player's player key. After all, the Xing player key has been revoked, > but it can be legally used to play DVDs. As long as we have legitimately > obtained the player key we use for decryption, we have the > "authority of the copyright owner". Then the only way to attack DeCSS > would be to attack the legitimacy of the player key [or keys] that > it uses for decryption. Since player keys are trade secrets this > is an attack on the legitimacy of the reverse engineering that > obtained them --- ground on which we are [relatively] comfortable. But it's now known how to break CSS without knowing any player keys at all. And some people have suggested that unlicensed player software ought to do this, to weaken trade secret claims against it. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 18:57:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA04088 for dvd-discuss-outgoing; Thu, 6 Jul 2000 18:57:44 -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 SAA04085 for ; Thu, 6 Jul 2000 18:57:44 -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:2.21) with ESMTP id UAA00157 for ; Thu, 6 Jul 2000 20:59:35 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA28419; Thu, 6 Jul 2000 20:59:34 -0400 (EDT) Date: Thu, 6 Jul 2000 20:59:34 -0400 (EDT) Message-Id: <200007070059.UAA28419@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" In-Reply-To: <3964F7A5.365A9F9B@mit.edu> References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Plaintiffs will say there is no need to speculate about their > authority model. They are (or represent) the copyright owner. > When they say descrambling is authorized it is. When they say > descrambling is not it is not. They have said DeCSS is not > authorized, therefore it is not authorized. ... which would mean the DMCA grants them the right to authorize not just particular *individuals* to access their works, but that it allows them to authorize particular *acts* of access. In other words, the claim would be that DeCSS is circumvention not because it allows unauthorized people to view the work, but rather because the copyright holders have not specifically authorized its use. Which is difficult to reconcile with a lot of the relevant legislative history. For instance, 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. Note here that copyright owners are specifically denied the right to vet and approve implementations of their access control measures. In fact, they go on to stress that such reimplementations are allowed to suppress incidental effects, if that's needed for usability: Under such circumstances, such a technological measure may materially degrade or otherwise cause recurring appreciable adverse effects on the authorized performance or display of works. Steps taken by the makers or servicers of consumer electronics, telecommunications or computing products used for such authorized performances or displays solely to mitigate these adverse effects on product performance (whether or not taken in combination with other lawful product modifications) shall not be deemed a violation of sections 1201(a) or (b). See also Sen. Ashcroft's *extended* discussion of why the video capture card in his PC would not, under the standards of the law, constitute circumvention, even though the thing does defeat macrovision, which comes from the introduction of the DMCA in the Senate: Nothing could cause greater disaster and a swifter downfall of our vibrant technology sector than to have the federal government dictating the design of computer chips or mother boards. 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. More along these lines can be found in my legislative history screed... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 19:04:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04141 for dvd-discuss-outgoing; Thu, 6 Jul 2000 19:04:36 -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 TAA04138 for ; Thu, 6 Jul 2000 19:04:35 -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:2.21) with ESMTP id VAA00977 for ; Thu, 6 Jul 2000 21:06:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA29976; Thu, 6 Jul 2000 21:06:31 -0400 (EDT) Date: Thu, 6 Jul 2000 21:06:31 -0400 (EDT) Message-Id: <200007070106.VAA29976@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Public domain, was: New way of phrasing? In-Reply-To: <20000705131320.B1677@localhost> References: <20000705100448.A800@localhost> <20000705115712.C1226@localhost> <20000705200129.A31927@inka.de> <20000705131320.B1677@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > > Hadn't we established that there are already public domain works published > > on encrypted DVDs? > > My recollection is that all either include modern commentary (in which > case one can argue about descrambling to get the P.D. segment, and that > not being circumvention), or they had been colorized or otherwise cleaned > up. But use of DeCSS to access the public domain portion of the content on the DVD would not constitute circumvention in this case, near as I can tell. (Circumvention requires effective access control, which is defined in 1201(a) *and* (b) in terms of the "authority of the copyright owner"; where there is no copyright owner, there can't be circumvention). Whether there's enough of this to constitute "substantial noninfringing use", if that's the standard, is another question... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 19:51:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04351 for dvd-discuss-outgoing; Thu, 6 Jul 2000 19:51:40 -0400 Received: from ostrich.prod.itd.earthlink.net (ostrich.prod.itd.earthlink.net [207.217.120.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA04348 for ; Thu, 6 Jul 2000 19:51:39 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by ostrich.prod.itd.earthlink.net (8.9.3/8.9.3) with ESMTP id NAA11377 for ; Thu, 6 Jul 2000 13:09:55 -0700 (PDT) Received: from hoth (user-2inib0k.dsl.mindspring.com [165.121.44.20]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA18258 for ; Thu, 6 Jul 2000 13:09:31 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Circumvention and authority Date: Thu, 6 Jul 2000 13:09:24 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <20000705191620.A3297@localhost> Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Paul Fenimore Sent: Wednesday, July 05, 2000 6:16 PM >On Wed, Jul 05, 2000 at 05:02:39PM -0700, Jim Taylor wrote: > >> By removing the encryption, one circumvents the access control. > >Not if one removes the encryption "with authority". Right. I was thinking specifically of removing encryption other than in an authorized player, but I didn't make that clear. >> So the question is, is circumvention the goal? > >I disagree. The question of circumvention (a)(1) turns on whether you >have authority or not. The question of whether trafficking (a)(2) is >legal or not turns on (i) designed to circumvent (ii) only limited >commercial use other than circumvention (iii) is market to circumvent, >all three at once. Depends I suppose on your definition of circumvention. I was thinking of circumvention with intent to make an illegal copy. If circumvention is only used for fair access, is it still circumvention? I'm still a bit fuzzy about the whole "authority" thing. What gives the copyright holder the right to establish which devices are authorized? I assume Hollywood's argument is that players (including software players that have been created pursuant to a CSS license) are authorized, and that DeCSS is not. But if DeCSS is used in non-infringing manner, why is authority relevant? If I own the copyright on a book, and I use a technical method to protect it (say a little combination lock on the cover), so that only those "authorized" by me (with the combination code) can read it, and someone buys the book and opens it without my authorization (either by brute force or by guessing at the combination code), and all they do is read it (not copy it), why is authorization necessary for protecting copyright? -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 19:57:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04460 for dvd-discuss-outgoing; Thu, 6 Jul 2000 19:57:33 -0400 Received: from nospam.com (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id TAA04457 for ; Thu, 6 Jul 2000 19:56:24 -0400 Date: Thu, 6 Jul 2000 19:56:24 -0400 Message-Id: <200007062356.TAA04457@eon.law.harvard.edu> To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Streambox case From: sorry@i.dont.like.spam Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > --- sam th wrote: > > > [continued from above] This is exacltly analagous > > to sattelite television, where the EM waves are free, but the > > authorization to use them is not. This would be a > > different case (and one I wouldn't feel as bad about) if the MPAA > > were giving DVD's out in the streets, and just charging for > > players. This is the same model. It's when they want to have > > their cake and eat it too that the trouble arises. > > Isn't the streambox case basically like this? They freely distribute > encoded works in an encrypted shell that they use to enforce the > copy-bit. No. In the Streambox case, the plaintiff, RealNetworks, encouraged other people to use their software to distribute works. This software encodes the works into a format which is designed to work only with their player. Realnetworks then uses this content (which they do not own or have any rights to) as a lure to get users to accept a player with obnoxious restrictions, such as advertisments and the copy-bit. RealNetworks is abusing Section 1201 to try to prevent distribution of alternatives to their player. Streambox made an alternative player which does not have any restrictions. RealNetworks claims that this is an unauthorized circumvention device. This is improper under 1201 because the authority must come from the copyright holder, and RealNetworks is not the copyright holder. If I use Streambox to listen to, for example, Emmanuel Goldstein's radio program, and I have the copyright holder's permission to do so, no 1201 violation has occured. Realnetworks is abusing the letter and intent of section 1201 as much as the MPAA, if not moreso. The copy-bit is a flag which tells their player not to save a copy to disk. The problem with this scheme is that the encoder sets this by default and so the majority of content on the internet has the no-copy but set, not because the publisher wanted it, but simply because they weren't aware of it. Realnetworks is trying to use this to inflate their claims of damages. Perhaps 2600 should have a list of links to open source RealAudio players in addition to their DeCSS page. :) Here are a few: http://members.tripod.com/~ladsoft/ra.htm http://www.fortunecity.com/tinpan/ellington/783/ http://csc.smsu.edu/~strauser/RA.html From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 20:08:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04527 for dvd-discuss-outgoing; Thu, 6 Jul 2000 20:08:33 -0400 Received: from dial92.roadrunner.com (sf-du92.cybermesa.com [209.12.75.92]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04524 for ; Thu, 6 Jul 2000 20:08:28 -0400 Received: (from paul@localhost) by dial92.roadrunner.com (8.8.7/8.8.7) id UAA03081 for dvd-discuss@eon.law.harvard.edu; Thu, 6 Jul 2000 20:11:05 -0600 Date: Thu, 6 Jul 2000 20:11:04 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] LOC post-hearing comments are available Message-ID: <20000706201104.A2928@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 post-hearing comments for section 1201 are now available on-line: Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 20:53:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04726 for dvd-discuss-outgoing; Thu, 6 Jul 2000 20:53:47 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04723 for ; Thu, 6 Jul 2000 20:53:46 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13AOIo-0006bq-00; Thu, 06 Jul 2000 19:55:42 -0700 Date: Thu, 6 Jul 2000 19:55:42 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Junger on Kaplan on Junger Message-ID: <20000706195542.E9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000706105909.R9454@zork.net> <200007062032.QAA02209@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007062032.QAA02209@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Thu, Jul 06, 2000 at 04:32:27PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter D. Junger writes: > I think I misread your initial message; I thought that you were referring > to the case, not to me. Sorry for the hasty reading. Someone suggested finding law professors who could write briefs on the implications of the _Junger_ case, so I suggested "Professor Junger". -- 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 Jul 6 21:07:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA04878 for dvd-discuss-outgoing; Thu, 6 Jul 2000 21:07:16 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA04875 for ; Thu, 6 Jul 2000 21:07:15 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id WAA21154 for ; Thu, 6 Jul 2000 22:08:55 -0500 Message-ID: <39654AD5.DE1C96CF@mninter.net> Date: Thu, 06 Jul 2000 22:13:25 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > The Librarian of Congress post-hearing comments for section 1201 > are now available on-line: I think it's a shame that the EFF focused solely on DVDs in this one... But I was heartened to read the one from NARM. I wonder what their constituency is. They seem to have hit on the big ones, including copyright misuse. The DVDCCA claims yet again that DVD-Audio was postponed because of DeCSS. I thought that this claim was refuted here. Fraud? They also say that copyright holders are amenable to providing libraries "fair-use" copies "under special arrangements." Misuse of copyright? Have you hugged your librarian of congress today? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 22:06:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05176 for dvd-discuss-outgoing; Thu, 6 Jul 2000 22:06:29 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05173 for ; Thu, 6 Jul 2000 22:06:28 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id AAA03551; Fri, 7 Jul 2000 00:09:04 -0400 Message-ID: <396557E0.FE21CB41@mit.edu> Date: Fri, 07 Jul 2000 00:09:04 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > The Librarian of Congress post-hearing comments for section 1201 > are now available on-line: > > > > Paul Fenimore When reading the comments of the DVDCCA I felt I had entered a parallel universe: Here are some quotes I found worth commenting on: "Licenses to the CSS technology are available royalty-free on reasonable and nondiscriminatory terms for use with any operating system." "Licenses for the CSS technology are available to users of the Linux operating system on the same terms as they are to users of any other operating system. Moreover, there are no license restrictions in either the CSS license or in the GNU license for Linux users that would preclude a software developer from implementing the CSS technology in an open source system such as Linux." Comment (on both): I thought one of the provisions of the CSS license was that you had to implement CSS without disclosing the algorithm or your player key. Key disclosure was why the Xing player key was revoked, wasn't it? This would seem to be trivially in conflict with the GNU GPL. Of course, their language is vague enough for them to mean that the software player can implemented under the LGPL and the CSS part of it is a binary library, but I find it hard to believe that the DVD CCA would be _that_ subtle... Another possibility is that they are trying to slip something by by not referring to the CSS Agreement they mention earlier. Specifically, there is no conflict between the CSS _License_ and the GPL, but that there is a conflict between the CSS _Agreement_ and the GPL. See below for more comments on this. In response to Robin Gross' allegation that the DVD CCA has used CSS to tie DVDs to players they write: "CSS is not required in order to manufacture products capable of using the DVD format. CSS is a purely optional add-on technology that is not required or necessary to manufacture software or hardware capable of playing DVDs." Comment: This is literally true, but does not address the accusation. A CSS-encrypted DVD requires a CSS-enabled player for use. If creating a CSS-enabled player involves agreeing to limit legal player features that consumers might desire then the MPAA members, by only releasing movies on CSS-encrypted DVDs, are using their (copyright-derived) monopoly in the movie market to limit competition in the player market. (see sam th's recent message "Why I love Justice Stevens" for more on this). On how CSS provides protection against unauthorized copying: "First, keys necessary for the authorized playback of the encrypted content are stored in an area of the DVD disc which is not normally accessible or copyable when a recording of a disc is made. Accordingly, if a user were to make a bit for bit copy of a CSS encrypted disc, the copy would be encrypted and the device on which playback is attempted would not be able to access the keys needed to decrypt the content. Moreover, even if the content were somehow copied in decrypted form, an authorized player would be unable to access the keys necessary to play back the unauthorized copy of the disc." Comment: This is a misleading use of the term bit-for-bit copy. A bit-for-bit pirated DVD would contain the key sector and would be manufactured the way a regular DVD is. I know they press CDs in Hong Kong. As many have mentioned, there is little reason they couldn't press DVDs, too. [Can anyone acquire such a DVD? It seems to me that if they are claiming the key sector is part of the access control mechanism, it would be useful to present one of these DVDs in court, if we can.] "Second, in the event that a disc is copied without authorization (e.g. if a copy is made from a prerecorded CSS encrypted disc), licensed players are required to employ means of detecting and identifying the media type on which content is stored. If content that is not authorized for copying is nevertheless recorded onto recordable media, a licensed player is required to reject attempts to play back such content. This is true in particular in the case in which the content on the recordable media retains the CSS encryption." Comment: This seems inconsistent with their earlier statement that there is no conflict between the CSS license and the GNU license. Someone with a GPLed player could get the player source and could trivially use it to build a player that could play from recordable media. Moreoever, the GPL requires that the modified player must be distributable under the terms of the GPL (which includes permission to use the player), so I don't see how a GPLed player could effectively implement this provision of the CSS license. "the regional coding functions are not including in CSS and are entirely separate functions, therefore there is no incentive whatsoever to hack CSS in order to manipulate such functions," Comment: If authorized players are required to implement the regional coding functions as a condition of the CSS license there is. "the CSS license likewise does not restrict the sale and use of DVD players intended for one region to that region. Accordingly, consumers may purchase players from other regions of the workd for use in the United States if they so desire," Comment: But is it fair use if I use DeCSS to avoid the time, trouble and expense of purchasing a DVD player from another region? If not, why not? "Ms. Gross asserted that individuals are unable to use excerpts of movies classroom use. DVD CCA agrees with Mr. Marks' comments that the DVD format actually makes the playback of excerpts of movies much easier than the VHS format which require rewinding and fast forwarding in order to get access to a specific portion of the movie." Comment: Correct me if I am wrong, I would think that playing an excerpt in class is not the only legitimate classroom use of a movie excerpt. What about students including excerpts in a multimedia report (without giving their professor a DVD), what about including an excerpt in an assignment that requires commentary on the excerpt (without buying a DVD for each copy of the assignment). I know I've seen copyrighted texts quoted in classroom assignments and reports. Why should the situation be any different for movies on DVD (aside from the fact that we are not used to professors distributing multimedia assignments and collecting multimedia reports). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 22:28:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05318 for dvd-discuss-outgoing; Thu, 6 Jul 2000 22:28:37 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05315 for ; Thu, 6 Jul 2000 22:28:36 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA28565 for ; Thu, 6 Jul 2000 23:30:17 -0500 Message-ID: <39655DE2.9DA8DAEC@mninter.net> Date: Thu, 06 Jul 2000 23:34:42 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> <20000706170208.A2227@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Paul Fenimore wrote: > The part about contract is an analogy. The technological measure, > even if it is ineffective, even if the authority model is broken, > exists, and the D's are being sued over that measure.[...] I understand your point, and agree. I just don't think we need to delve quite that deeply into it (yet). "We are suing because 2600 distributes software that circumvents CSS [because it is dis-authorized]." "Dear plaintiffs, please specify, because you are so keen on authorizing things, what accesses are authorized?" "..." "And when, prey tell, is this communicated to the DVD consumer?" "... ..." It is what fills-in-the-blanks that we can act on and win the case. If they refuse to fill the first blank satisfactorily, there is no case. Through the time that I type this message, they have been unwilling or unable to fill either blank. They must fill the blanks to justify their claims to dis-authorization and sue the defendant. I have been holding back on my theory for what can possibly fill the blanks. The possible answers have become more convoluted every day. Here's my best shot, as complete as I can construct: Access is authorized exclusively when: -The use is authorized, -The accessing mechanism is authorized, and -The accessed copy is authorized. The use is authorized exclusively when: -The use is permitted by the authorized accessing mechanism[1], and -The use does not (maybe CANNOT) violate copyright[2]. The accessing mechanism is authorized exclusively when: -It was produced under a valid CSS license[3] by a CSS licensee and -The CSS license remains valid at time of use[4]. A CSS license is valid exclusively when: -The fee has been paid, -The accessing mechanism does not permit uses prohibited in the license, such as fast-forwarding and chapter advance at times, "firewire" output, storage of the cleartext MPEG2, other such limitations as appear in the license, -The accessing mechanism enforces macrovision when enabled, -The accessing mechanism enforces region coding, and -It has not been revoked. The accessed copy is authorized when: -It was produced by the copyright holder[5] - -------------------------------------------------------------- 1. disauthorizes DODSripper, hacked or exploited players. 2. Obviously, although probably hampers all non-infringing use a priori. 3. disauthorizes DeCSS, LiViD, et al. 4. disauthorizes players with revoked keys like Xing. 5. disauthorizes bitwise copies in violation of copyright. Now. Suppose they use that definition or a facsimilie to define access authority. It fits reality. It permits litigation over the distribution of DeCSS. First problem: they never told anyone this BEFORE. All the DVDs and players purchased prior to this revelation cannot reasonably be held to this definition of access because nobody would have bought a single damn one. This is an access contract/agreement/understanding that the studios enjoy with absolutely nobody. Further problems: Misuse of copyright, Anti-trust (illegal tying), hinders non-infringing use... The list goes on and on and on. Focus on the first problem, however, and you realize that NO claim to authority will hold regarding any currently existing DVD or player. So, make them fill in the blanks, and the lawsuit disappears in a puff of smoke. Before we even worry about how much their authority-model offends common decency. No? - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWVdxTik9YADgV7kEQJ20ACgipUov0U6Kj4pjNaDcIxWao98f2YAoM4x AiUg9ehjFzqCv9Ysa3QfhAaG =GXKT -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 22:43:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05452 for dvd-discuss-outgoing; Thu, 6 Jul 2000 22:43:54 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05449 for ; Thu, 6 Jul 2000 22:43:53 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id AAA03610; Fri, 7 Jul 2000 00:46:29 -0400 Message-ID: <396560A5.F9FB22CD@mit.edu> Date: Fri, 07 Jul 2000 00:46:29 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Attacking authority [again] References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <20000706150044.A1548@localhost> <39650D38.C922F2A7@mit.edu> <20000706175721.X9454@zork.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 Seth David Schoen wrote: > > Ravi Nanavati writes: > > > Paul Fenimore wrote: > > > Modulo what I've been saying about acts of circumvention vs. devices that > > > descramble, yes. The authority cannot attach to the DVD player. The function > > > of the DeCSS decoder as far as 1201-access is concerned is 1:1 with the Xing > > > player (since the date DeCSS was released, the Xing player key has been > > > revoked). > > > > We can use the revocation of the Xing player key to attack their > > authority > > model. This is an important question to ask the entity that did the > > revoking: > > (I presume the DVDCCA, but I can't find an online reference to the > > actual > > revocation). > > > > If someone uses the old Xing player (with the revoked key) to play a DVD > > has > > that person committed an act of circumvention? > > > > If no, then we can argue that the copyright owner grants authority to a > > player to decrypt a DVD by encrypting that DVD's title key with that > > player's player key. After all, the Xing player key has been revoked, > > but it can be legally used to play DVDs. As long as we have legitimately > > obtained the player key we use for decryption, we have the > > "authority of the copyright owner". Then the only way to attack DeCSS > > would be to attack the legitimacy of the player key [or keys] that > > it uses for decryption. Since player keys are trade secrets this > > is an attack on the legitimacy of the reverse engineering that > > obtained them --- ground on which we are [relatively] comfortable. > > But it's now known how to break CSS without knowing any player keys at > all. And some people have suggested that unlicensed player software > ought to do this, to weaken trade secret claims against it. Not distributing the player keys weakens the trade secret claims, but it strengthens the circumvention claims. The disk flows from the copyright owner, so it can carry the owner's authorization. There is no reason the owner can't "store" that authorization in the encrypted disk keys. "Storing" the authorization in that manner seems to me an implicit grant of authorization to any player that legitimately _knows_ a valid player key, not just any player that has a licensed key. After all the disk can't tell the difference between a licensed key and an unlicensed key, but it can tell the difference between a known key and an unknown key. Getting the disk key without using a player key seems like circumvention to me, however. You have descrambled the contents without "opening" the box in which authority is stored. This is not a bar to creating unlicensed players, however. Take one DVD disk. Get its disk key and use it to construct a list of player keys. I don't see how this is anything but legitimate reverse-engineering. Those player keys can be used to decrypt any _other_ DVD disk that has disk keys encrypted with them, since on any other disk you can go through the "player key hoop", without touching the disk key first. (If you touch the disk key first, you haven't gone through the "player key hoop" no matter how much you claim you have.) To be able to play the first disk, get a list of player keys from some other disk. I understand that these lists are likely to be the same, but the point is that this shows your unlicensed player always derives the disk keys it uses from player keys that don't depend on those disk keys --- it is _implementing_ CSS, not _circumventing_ CSS. I would argue you could even distribute those two lists of keys, since they were acquired legitimately. If you can't, the setup phase of an unlicensed DVD player would involve putting two different DVDs in your drive (they don't even need to be DVDs you own). The fact that the MPAA, DVD CCA, and player manufacturers could not maintain the shared secrets that make their licensing scheme work is sad for them, but is not out problem. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 22:58:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA05586 for dvd-discuss-outgoing; Thu, 6 Jul 2000 22:58:39 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA05583 for ; Thu, 6 Jul 2000 22:58:38 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id AAA30748 for ; Fri, 7 Jul 2000 00:00:19 -0500 Message-ID: <396564C2.D5065C32@mninter.net> Date: Fri, 07 Jul 2000 00:04:02 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@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 > I know > they press CDs in Hong Kong. As many have mentioned, > there is little reason they couldn't press DVDs, too. > [Can anyone acquire such a DVD? The plaintiffs probably have a few, or can testify to their existance. I question whether pirated DVDs are CSSed, because most of them that I have read about are laserdisc, VHS or camcorder versions burned to DVD, not bitwise copies (though I don't deny that they could be made). Maybe one of these will do: "On November 5, 40,000 pirate DVDs (manufactured in Taiwan) were among the results of a series of raids on 15 offices, distribution centers and warehouses;" http://www.iipa.com/html/rbc_hong_kong_301_99.html From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 23:04:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA05762 for dvd-discuss-outgoing; Thu, 6 Jul 2000 23:04:47 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA05759 for ; Thu, 6 Jul 2000 23:04:46 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13AQLa-0006rq-00; Thu, 06 Jul 2000 22:06:42 -0700 Date: Thu, 6 Jul 2000 22:06:42 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available Message-ID: <20000706220642.H9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <396557E0.FE21CB41@mit.edu>; from ravi_n@mit.edu on Fri, Jul 07, 2000 at 12:09:04AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Paul Fenimore wrote: > > > > The Librarian of Congress post-hearing comments for section 1201 > > are now available on-line: > > > > > > > > Paul Fenimore > > When reading the comments of the DVDCCA I felt I had entered a > parallel universe: > > Here are some quotes I found worth commenting on: > > "Licenses to the CSS technology are available royalty-free on > reasonable and nondiscriminatory terms for use with any > operating system." > > "Licenses for the CSS technology are available to users of the Linux > operating system on the same terms as they are to users of any other > operating system. Moreover, there are no license restrictions in either > the CSS license or in the GNU license for Linux users that would > preclude a software developer from implementing the CSS technology in an > open source system such as Linux." > > Comment (on both): > > I thought one of the provisions of the CSS license was that you > had to implement CSS without disclosing the algorithm or your > player key. Key disclosure was why the Xing player key was revoked, > wasn't it? This would seem to be trivially in conflict with the > GNU GPL. Of course, their language is vague enough for them to mean that > the software player can implemented under the LGPL and the CSS part of > it is a binary library, but I find it hard to believe that the DVD CCA > would be _that_ subtle... I am sure they meant that the fact that the Linux kernel is licensed under the GPL does not preclude you from writing proprietary software which runs on Linux and implements CSS. Thus the sloppy comments of people who said "we want a Linux player" come back to bite us: the DVD CCA says over and over and over again that it has licensed a Linux player. Of course what most people meant was "we want an open source player", but they weren't clear about it, and the media didn't pick up on it, so now the CCA can make the "we want a Linux player" demand look silly. In November I talked about "players for minority platforms" or "players for minority operating systems" as a benefit of the CSS crack. Amazingly, Linux is now mainstream enough that the DVD CCA's licensing regime might well have allowed a useful (non-open source!) Linux player, eventually. The "minority platforms" now are tinier things like the BSD family, the Amiga, Be, and so on. The DVD CCA could license a player for any of these operating systems, but the market would be negligible and developers wouldn't even recoup the CSS licensing fee. On the other hand, the open-source LiViD player can in principle be made to run under any operating system. There is no need to worry about its popularity or how much money is to be made off of a particular port. People must be more specific about what they want. If the media got the idea that people wanted an open source player, the CCA would have to attack the concept of open source, because it's incompatible with their licensing policies. Since Linux itself isn't incompatible with those policies, the CCA doesn't need to attack Linux in order to respond to the "we want a Linux player" folks. > "Second, in the event that a disc is copied without > authorization (e.g. if a copy is made from a > prerecorded CSS encrypted disc), licensed players are > required to employ means of detecting and identifying > the media type on which content is stored. If content > that is not authorized for copying is nevertheless > recorded onto recordable media, a licensed player > is required to reject attempts to play back such > content. This is true in particular in the case in > which the content on the recordable media retains the > CSS encryption." Yay! I got it right! :-) > Comment: This seems inconsistent with their earlier > statement that there is no conflict between the > CSS license and the GNU license. Sure, they're not talking about GPLed players, they're talking about GPLed operating systems. They are missing the point by accident, or getting away with missing it on purposes, because people who spoke to the media weren't clear enough about what they were talking about. > "Ms. Gross asserted that individuals are unable to > use excerpts of movies classroom use. DVD CCA > agrees with Mr. Marks' comments that the DVD format > actually makes the playback of excerpts of movies > much easier than the VHS format which require > rewinding and fast forwarding in order to get > access to a specific portion of the movie." This is odd: one used to be able to _copy_ from VHS, but (by design) not from DVD (because of all sorts of stuff enforced through CSS licensing). Copying is an easy, obvious, and natural way to make excerpts for teaching. Teachers constantly make copies of things for instructional purposes. OK, I'll stop preaching to the choir. -- 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 Jul 6 23:17:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA05815 for dvd-discuss-outgoing; Thu, 6 Jul 2000 23:17:04 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA05812 for ; Thu, 6 Jul 2000 23:17:04 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id BAA03688; Fri, 7 Jul 2000 01:19:39 -0400 Message-ID: <3965686B.AE16A228@mit.edu> Date: Fri, 07 Jul 2000 01:19:39 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> <20000706170208.A2227@localhost> <39655DE2.9DA8DAEC@mninter.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 Chris Moseng wrote: > > -----BEGIN PGP SIGNED MESSAGE----- > Hash: SHA1 > > Paul Fenimore wrote: > > > The part about contract is an analogy. The technological measure, > > even if it is ineffective, even if the authority model is broken, > > exists, and the D's are being sued over that measure.[...] > > I understand your point, and agree. I just don't think we need to > delve quite that deeply into it (yet). > > "We are suing because 2600 distributes software that circumvents CSS > [because it is dis-authorized]." > > "Dear plaintiffs, please specify, because you are so keen on > authorizing things, what accesses are authorized?" > > "..." > > "And when, prey tell, is this communicated to the DVD consumer?" > > "... ..." The problem I see is that Kaplan isn't even _asking_ these questions, and does not even see them as relevant. >From the June 27 transcript: Indeed, it is arguably the case that the plaintiffs 1 can make out a prima facie case of a violation of the DMCA by 2 establishing that CSS effectively controlled access to 3 copyrighted works which the defendants conceded already in 4 this case and that the DECS circumvents CSS and has little or 5 no other purpose. At least part of that appears to be ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 6 undisputed. ^^^^^^^^^^ In order to get to the conclusion that DeCSS circumvents he has to be taking plaintiff's word about what is and is not authorized, or trusting his own sense about what is and is not authorized. We need to attack authorization so that Kaplan realizes how ludicrous it is to trust plaintiff's word about authorization and how unreasonable it is to use an "intuitive feel" for authorization (that is what the revoked Xing key questions are about). If Kaplan never understands what is problematic about authorization, he will not make the case disappear even if he otherwise would. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 23:28:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA05942 for dvd-discuss-outgoing; Thu, 6 Jul 2000 23:28:27 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA05939 for ; Thu, 6 Jul 2000 23:28:26 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id AAA00466 for ; Fri, 7 Jul 2000 00:30:08 -0500 Message-ID: <39656BB6.EE15D21C@mninter.net> Date: Fri, 07 Jul 2000 00:33:42 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000705221251.A5072@localhost> <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> <20000706170208.A2227@localhost> <39655DE2.9DA8DAEC@mninter.net> <3965686B.AE16A228@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 Ravi Nanavati wrote: > The problem I see is that Kaplan isn't even _asking_ these questions, > and does not even see them as relevant. After reading the context surrounding the statements you quoted, it seems he assumes circumvention as a given. I think it is small potatoes to disprove that at trial (or appropriate time so as not to surprise him). DeCSS demonstrably does not circumvent in a technological sense, and 1201 circumvention does not exist and cannot be prosecuted without an authority model. Then, we pop the question. He goes on: "At least part of that appears to be undisputed." Well, it's not. I think he's jumping the gun just a little is all, and that can be remedied. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 6 23:41:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA06031 for dvd-discuss-outgoing; Thu, 6 Jul 2000 23:41:41 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA06028 for ; Thu, 6 Jul 2000 23:41:40 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id BAA03741; Fri, 7 Jul 2000 01:44:16 -0400 Message-ID: <39656E30.F2778A25@mit.edu> Date: Fri, 07 Jul 2000 01:44:16 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> <20000706220642.H9454@zork.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 Seth David Schoen wrote: > I am sure they meant that the fact that the Linux kernel is licensed > under the GPL does not preclude you from writing proprietary software > which runs on Linux and implements CSS. This is a great point. I read implementing CSS in an open-source system as having an open-source implementation of CSS. Obviously the DVD CCA's intent was saying that there is no barrier to implementing CSS on top of Linux. > > "Second, in the event that a disc is copied without > > authorization (e.g. if a copy is made from a > > prerecorded CSS encrypted disc), licensed players are > > required to employ means of detecting and identifying > > the media type on which content is stored. If content > > that is not authorized for copying is nevertheless > > recorded onto recordable media, a licensed player > > is required to reject attempts to play back such > > content. This is true in particular in the case in > > which the content on the recordable media retains the > > CSS encryption." > > Yay! I got it right! :-) > > > Comment: This seems inconsistent with their earlier > > statement that there is no conflict between the > > CSS license and the GNU license. > > Sure, they're not talking about GPLed players, they're talking about > GPLed operating systems. They are missing the point by accident, or > getting away with missing it on purposes, because people who spoke > to the media weren't clear enough about what they were talking > about. > I still think they're in trouble here, though. The problem is that on Linux either the DVD-ROM driver is open source or it is linked to the kernel as a binary module. This suggests to me that you can always make the DVD-ROM driver lie (by modifying it directly or creating a shell around a binary one) about whether the media is recordable or not. This implies a CSS License violation because you can make an authorized player play from recordable media. Under a non-open-source system you couldn't do this without modifying the OS or player itself, which would be prohibited by the OS or player license, respectively (which would make a CSS License issue moot, I think). However this is a nitpicky point that means the DVD CCA is probably not intentionally lying, even if they might be mistaken. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 05:43:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA07291 for dvd-discuss-outgoing; Fri, 7 Jul 2000 05:43:49 -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 FAA07288 for ; Fri, 7 Jul 2000 05:43:48 -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:2.21) with ESMTP id HAA09222 for ; Fri, 7 Jul 2000 07:45:45 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA18836; Fri, 7 Jul 2000 07:45:44 -0400 (EDT) Date: Fri, 7 Jul 2000 07:45:44 -0400 (EDT) Message-Id: <200007071145.HAA18836@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Circumvention and authority In-Reply-To: References: <20000705191620.A3297@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Depends I suppose on your definition of circumvention. I was thinking of > circumvention with intent to make an illegal copy. If circumvention is only > used for fair access, is it still circumvention? Once again, not according to the conference committee report, which at the very least documents the intent of Congress in passing the bill. (See also the numerous comments in the legislative history about how the bill bans only "black boxes" whose only real purpose is to provide access to unauthorized individuals, and how it should have no effect whatever on the design of legitimate products). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 09:09:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA08425 for dvd-discuss-outgoing; Fri, 7 Jul 2000 09:09:42 -0400 Received: from ndlismtp01.newsday.com (ndlimail01.newsday.com [170.165.1.6]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA08422 for ; Fri, 7 Jul 2000 09:09:41 -0400 Received: by ndlismtp01.newsday.com(Lotus SMTP MTA v4.6.3 (733.2 10-16-1998)) id 85256915.005341EF ; Fri, 7 Jul 2000 11:09:23 -0400 X-Lotus-FromDomain: NEWSDAY From: "Rita Ciolli" To: dvd-discuss@eon.law.harvard.edu Message-ID: <85256915.00533FA8.00@ndlismtp01.newsday.com> Date: Fri, 7 Jul 2000 11:09:16 -0400 Subject: Re: [dvd-discuss] I am flying into San Jose this evening and would like to meet with you both at 9:00 p.m. tonite at t Mime-Version: 1.0 Content-type: text/plain; charset=us-ascii Content-Disposition: inline Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hi, you sound very busy. Things are moving along well. I am photographing and talking to Eric on Tuesday at WBAI. Let's try to talk early in the week. I still need Marty. Thanks. Rita From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 09:34:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA08711 for dvd-discuss-outgoing; Fri, 7 Jul 2000 09:34:38 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA08708 for ; Fri, 7 Jul 2000 09:34:30 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id HAA24012; Fri, 7 Jul 2000 07:51:30 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu, "Edward Hernstadt" , Subject: Re: [dvd-discuss] I am flying into San Jose this evening and would like to meet with you both at 9:00 p.m. tonite at t Date: Fri, 7 Jul 2000 07:50:24 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0007070751300B.05357@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ed, As a member of the defense team it is vitally critical to check who you are sending your emails to. Unless you're going to depose the whole list... and can pay our airfare to san jose... --Russell On Fri, 07 Jul 2000, Edward Hernstadt wrote: > I am flying into San Jose this evening and would like to meet with you both at 9:00 p.m. tonite at the Stanford Park, 100 El Camino, Menlo Park. Let me know if you can make it. Chris your deposition begins at 10:00 a.m. tomorrow and Barbara, your deposition is at 2:00 p.m. tomorrow. The depositions are at > > Weil Gotshal > 2882 San Hill Road > Menlo Park, CA 94025 > (650) 926-6200 > > > > > > > > Edward Hernstadt > Frankfurt Garbus Kurnit Klein & Selz > 488 Madison Avenue > New York, New York 10022 > > Tel: 212/826-5582 > fax: 212/593-9175 > email: ehernstadt@fgks.com > > >>> Chris Moseng 07/07/00 01:04AM >>> > > I know > > they press CDs in Hong Kong. As many have mentioned, > > there is little reason they couldn't press DVDs, too. > > [Can anyone acquire such a DVD? > > The plaintiffs probably have a few, or can testify to their existance. I > question whether pirated DVDs are CSSed, because most of them that I > have read about are laserdisc, VHS or camcorder versions burned to DVD, > not bitwise copies (though I don't deny that they could be made). > > Maybe one of these will do: > > "On November 5, 40,000 pirate DVDs (manufactured in Taiwan) were among > the results of a series of raids on 15 offices, distribution centers and > warehouses;" > > http://www.iipa.com/html/rbc_hong_kong_301_99.html -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 09:55:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA08932 for dvd-discuss-outgoing; Fri, 7 Jul 2000 09:55:18 -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 JAA08929 for ; Fri, 7 Jul 2000 09:55:14 -0400 Message-ID: <20000707155638.23905.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 07 Jul 2000 08:56:38 PDT Date: Fri, 7 Jul 2000 08:56:38 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Another approach to "authority" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ravi Nanavati wrote: > Plaintiffs will say there is no need to speculate about their > authority model. They are (or represent) the copyright owner. > When they say descrambling is authorized it is. When they say > descrambling is not it is not. They have said DeCSS is not > authorized, therefore it is not authorized. If a consumer is > confused about whether or not a particular method of accessing > a copyrighted work is authorized, he or she should contact the > MPAA. This is _exactly_ the model the RIAA says applies to > fair use: The problem with this point of view is that the tense of the verbs are wrong. It doesn't matter what they "say" about authority, it matters what they "said" about authority to consumers at the time of sale. The only thing they said is on the copyright notice: "for home use only". There is a wonderful case, Hadady v Dean Witter Reynolds where some copyright infringement claims against Hadady were dismissed because Dean Witter successfully argued that the copyright notice as written gave then permission to use the material as used, despite the fact that Hadady claimed such a use was not covered by the notice. The judge said basically that the plain meaning of the notice speaks for itself, regardless of the intended meaning. A subsequent declaration interpreting the grant "does not raise a triable issue of material fact". Here's a link to chosen excerpts from this case: http://bioinformatics.ucsf.edu/bwtaylor/dvd/cases/summaries/Hadady_v_DeanWitter.html __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 10:32:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA09157 for dvd-discuss-outgoing; Fri, 7 Jul 2000 10:32:58 -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 KAA09154 for ; Fri, 7 Jul 2000 10:32:58 -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:2.21) with ESMTP id MAA09811 for ; Fri, 7 Jul 2000 12:34:56 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA22964; Fri, 7 Jul 2000 12:34:55 -0400 (EDT) Date: Fri, 7 Jul 2000 12:34:55 -0400 (EDT) Message-Id: <200007071634.MAA22964@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" In-Reply-To: <20000707155638.23905.qmail@web511.mail.yahoo.com> References: <20000707155638.23905.qmail@web511.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > The problem with this point of view is that the tense of the verbs are > wrong. It doesn't matter what they "say" about authority, it matters > what they "said" about authority to consumers at the time of sale. The > only thing they said is on the copyright notice: "for home use only". Well, that's not the *only* problem, but it's a big one. Note also that at least two software players (the now-dead Xing player, and one other) have licenses which have been quoted on this list as specifically stating that a license to the player does *not* carry with it the license to view any content. So the "authorized by player" theory is contradicted not only by the terms of sale of the DVDs, but also the players... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 10:46:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA09369 for dvd-discuss-outgoing; Fri, 7 Jul 2000 10:46:18 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA09366 for ; Fri, 7 Jul 2000 10:46:14 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA17601 for ; Fri, 7 Jul 2000 11:47:54 -0500 Message-ID: <39660A21.EF25B512@mninter.net> Date: Fri, 07 Jul 2000 11:49:37 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000707155638.23905.qmail@web511.mail.yahoo.com> <200007071634.MAA22964@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 > Well, that's not the *only* problem, but it's a big one. Yup, yup, yup. Their non-existant "authority-model" will be the death of their case. If their case succeeds despite their broken authority, 1201 will necessarily fall as a result. If a publisher can take advantage of consumers so monumentally and use 1201 to protect rights not granted by copyright, then 1201 must be broken. In my comment to the copyright office, I intended to force just such a conclusion. If copyright holders don't behave themselves WRT 1201, it will haunt them. A distribution is Pay-Per-Use or it's First-Sale, folks, pick one. If you find yourself somewhere inbetween, 1201 leads necessarily to copyright misuse, fraud or both. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 10:57:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA09534 for dvd-discuss-outgoing; Fri, 7 Jul 2000 10:57:31 -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 KAA09531 for ; Fri, 7 Jul 2000 10:57:29 -0400 Message-ID: <20000707165857.5164.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 07 Jul 2000 09:58:57 PDT Date: Fri, 7 Jul 2000 09:58:57 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Streambox 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 --- sorry@i.dont.like.spam wrote: > > Isn't the streambox case basically like this? They freely > > distribute encoded works in an encrypted shell that they use to > > enforce the copy-bit. > > No. In the Streambox case, the plaintiff, RealNetworks, encouraged > other people to use their software to distribute works. This software > encodes the works into a format which is designed to work only with > their player. Realnetworks then uses this content (which they do > not own or have any rights to) as a lure to get users to accept > a player with obnoxious restrictions, such as advertisments and > the copy-bit. I'm sorry you think the copy-bit is an "obnoxious restriction". It is really nothing more that an explicit statement of authorization status to copy the author's copyrighted work. Bummer if you think of 17 USC 106 as an obnoxious restriction. You have no right to be able to copy this work unless the bit is set to "ok to copy". If you don't like the advertising, then don't use the product and give up on getting free access to the content. Likewise, if you dont' like the music they play in the bookstore don't go there to browse the books. You seem to think you deserve to get something for nothing. > RealNetworks is abusing Section 1201 to try to prevent distribution > of alternatives to their player. Umm, there are plenty of alternatives to their player. You make it sound like they are a monopoly on content distribution over the internet. That is absurd. By the way, microsoft is in active competition with them, so RealNetworks are the "little guys". In fact, if you have a webserver up, then YOU are in competition with them. > Streambox made an alternative player which does not have any > restrictions. Translation: that commits and allows simple copyright infringement. > RealNetworks claims that this is an unauthorized circumvention > device. Which is it not? It's not authorized to access. It does access. It does bypass encryption based authentication. Sounds like access circumvention of TPMs to me. > This is improper under 1201 because the authority must come from > the copyright holder, and RealNetworks is not the copyright holder. The authority to copy is communicated from the copyright holder who sets the copybit to the user using RealNetworks protocol, which the author endorses by placing his material in the RealServer product. > If I use Streambox to listen to, for > example, Emmanuel Goldstein's radio program, and I have the > copyright holder's permission to do so, no 1201 violation has > occured. If Emmanuel Goldstein authorized RealNetworks to provide access to his radio program by placing a copy of it inside their encrypted channel (ie putting it on a RealServer) the he, not RealNetworks has denied you the priviledge of accessing THAT PARTICULAR COPY using Streambox. I doubt he actually does this, but if he did I bet he makes it available in other ways. I also be this sets the copy-bit to "ok". Since he doesn't control both content and delivery protocol there is no tying problem either. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 11:18:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09717 for dvd-discuss-outgoing; Fri, 7 Jul 2000 11:18:20 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09714 for ; Fri, 7 Jul 2000 11:18:15 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13AbnK-000870-00; Fri, 07 Jul 2000 10:20:06 -0700 Date: Fri, 7 Jul 2000 10:20:06 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case Message-ID: <20000707102006.L9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000707165857.5164.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000707165857.5164.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Jul 07, 2000 at 09:58:57AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > --- sorry@i.dont.like.spam wrote: > > > Isn't the streambox case basically like this? They freely > > > distribute encoded works in an encrypted shell that they use to > > > enforce the copy-bit. > > > > No. In the Streambox case, the plaintiff, RealNetworks, encouraged > > other people to use their software to distribute works. This > software > > encodes the works into a format which is designed to work only with > > their player. Realnetworks then uses this content (which they do > > not own or have any rights to) as a lure to get users to accept > > a player with obnoxious restrictions, such as advertisments and > > the copy-bit. > > I'm sorry you think the copy-bit is an "obnoxious restriction". It is > really nothing more that an explicit statement of authorization status > to copy the author's copyrighted work. Bummer if you think of 17 USC > 106 as an obnoxious restriction. You have no right to be able to copy > this work unless the bit is set to "ok to copy". > > If you don't like the advertising, then don't use the product and give > up on getting free access to the content. Likewise, if you dont' like > the music they play in the bookstore don't go there to browse the > books. You seem to think you deserve to get something for nothing. I don't like 106, but I like 1201 even less. Streambox wasn't prosecuted under 106, you know. "This is not an infringement case..." Anyway, sorry if you don't like 107 et seq. :-) > > Streambox made an alternative player which does not have any > > restrictions. > > Translation: that commits and allows simple copyright infringement. > > > RealNetworks claims that this is an unauthorized circumvention > > device. > Which is it not? It's not authorized to access. It does access. It does > bypass encryption based authentication. Sounds like access > circumvention of TPMs to me. I continue to be really perplexed, first of all, that you distinguish the Streambox case so strongly from the present case (although there are some different issues), and, second of all, that you endorse the result of that case! I keep meaning to write something about why the Streambox precedent is harmful, even if it provides some theory under which the DMCA may be interpreted to avoid applying to DeCSS but without being read out of existence. First and foremost, the Streambox case touches the issue of free speech in computer software: we now have an instance of another piece of contraband software because a company didn't like an application of that software (and maybe because that software violated the DMCA). It's astonishing that people aren't getting more worked up about this, especially considering how low RealNetworks' reputation had already fallen in some quarters before its lawsuit. I can only assume that people are neglecting to worry about this because this was relatively obscure litigation between two companies, neither of which did the sort of, um, media outreach :-) that _2600_ is engaging in, and then because Streambox is proprietary commercial software. (I don't know whether you actually had to pay for the version at issue, but I think Streambox did charge for some variants, and you didn't get source code.) So, then, some people don't care about the free speech rights of companies (or proprietary software authors) very much -- and _2600_ is certainly much more likely to see broad civil liberties issues if it gets sued than is a software company as defendant. (Maybe that makes a little sense, since magazines are more likely to land in the middle of free expression controversies than technology companies -- or at least to notice when they do.) The bottom line is that I think it's a terrible precedent in that it supports banning a computer program under the DMCA. One argument in the DeCSS case to which some people are quite strongly attached is "even if the DMCA is constitutional, and even if the DMCA would apply to DeCSS as a 'circumvention device', the DMCA can't be used to ban DeCSS, because we have a first amendment right to distribute it". Of course that argument wouldn't fly under _Streambox_, except as far as the Streambox folks probably didn't bother to press first amendment claims. The "benefit" derived from _Streambox_ would be a narrowing of the interpretation of the DMCA, without invalidating the whole thing, and clearly establishing that it can apply to computer programs and that a computer program can potentially be considered a circumvention device and ruled illegal. "Another such victory and I am undone!" -- 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 Jul 7 11:23:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09869 for dvd-discuss-outgoing; Fri, 7 Jul 2000 11:23:02 -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 LAA09866 for ; Fri, 7 Jul 2000 11:23:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Jul 2000 10:24:54 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 10:24:51 -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 > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Thursday, July 06, 2000 6:00 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "authority" > ... > Which is difficult to reconcile with a lot of the relevant legislative > history. For instance, 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. > > Note here that copyright owners are specifically denied the right to > vet and approve implementations of their access control measures. In > fact, they go on to stress that such reimplementations are allowed to > suppress incidental effects, if that's needed for usability: > > Under such circumstances, such a > technological measure may materially degrade or otherwise > cause recurring appreciable adverse effects on the authorized > performance or display of works. Steps taken by the makers or > servicers of consumer electronics, telecommunications or > computing products used for such authorized performances or > displays solely to mitigate these adverse effects on product > performance (whether or not taken in combination with other > lawful product modifications) shall not be deemed a violation > of sections 1201(a) or (b). This seems to certify that the technological protection measure can >not< be used as part of the authorization process. It also gives us "home use" of DeCSS if "home use" is indeed the authorization granted at first sale. This little paragraph from the conference comittee report could be >very< important to winning this case. -- -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 Jul 7 11:28:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09973 for dvd-discuss-outgoing; Fri, 7 Jul 2000 11:28:10 -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 LAA09970 for ; Fri, 7 Jul 2000 11:28:09 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Jul 2000 10:30:06 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 10:29:55 -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 1) "Circumvention" is -defined- (or so I understand) as "access without authorization". 2) DeCSS provides the "access", that is uncontested. 3) Now we need to establish the "authorization", or lack thereof. in order to establish "circumvention" ... if he is taking "circumvention" as a given then we have lost. We need to challenge him on this statement, using the three-step argument presented above ... perhaps supplemented by that paragraph from the conference committee that recognizes that "authorized" use can be interfered with by the protection mechanism. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] > Sent: Thursday, July 06, 2000 10:34 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "authority" > > > Ravi Nanavati wrote: > > > The problem I see is that Kaplan isn't even _asking_ these > questions, > > and does not even see them as relevant. > > After reading the context surrounding the statements you quoted, it > seems he assumes circumvention as a given. I think it is > small potatoes > to disprove that at trial (or appropriate time so as not to surprise > him). > > DeCSS demonstrably does not circumvent in a technological sense, and > 1201 circumvention does not exist and cannot be prosecuted without an > authority model. Then, we pop the question. > > He goes on: "At least part of that appears to be undisputed." > > Well, it's not. I think he's jumping the gun just a little is all, and > that can be remedied. > > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 11:31:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10013 for dvd-discuss-outgoing; Fri, 7 Jul 2000 11:31:16 -0400 Received: from ns.fgks.com ([208.130.17.130]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA10010 for ; Fri, 7 Jul 2000 11:31:14 -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 NAA26089 for ; Fri, 07 Jul 2000 13:35:38 +0100 Received: from FGDOM-Message_Server by FGKSGW with Novell_GroupWise; Fri, 07 Jul 2000 13:28:28 -0400 Message-Id: X-Mailer: Novell GroupWise 5.5.2 Date: Fri, 07 Jul 2000 13:28:03 -0400 From: "Edward Hernstadt" To: Subject: Re: [dvd-discuss] Another approach to "authority" 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 LAA10011 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Please ignore message this morning about San Jose. Ed is in Texas and I sent it to the wrong person. Sorry. Edward Hernstadt Frankfurt Garbus Kurnit Klein & Selz 488 Madison Avenue New York, New York 10022 Tel: 212/826-5582 fax: 212/593-9175 email: ehernstadt@fgks.com >>> Chris Moseng 07/07/00 12:49PM >>> > Well, that's not the *only* problem, but it's a big one. Yup, yup, yup. Their non-existant "authority-model" will be the death of their case. If their case succeeds despite their broken authority, 1201 will necessarily fall as a result. If a publisher can take advantage of consumers so monumentally and use 1201 to protect rights not granted by copyright, then 1201 must be broken. In my comment to the copyright office, I intended to force just such a conclusion. If copyright holders don't behave themselves WRT 1201, it will haunt them. A distribution is Pay-Per-Use or it's First-Sale, folks, pick one. If you find yourself somewhere inbetween, 1201 leads necessarily to copyright misuse, fraud or both. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 11:40:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10136 for dvd-discuss-outgoing; Fri, 7 Jul 2000 11:40:53 -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 LAA10133 for ; Fri, 7 Jul 2000 11:40:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 7 Jul 2000 10:42:51 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention and authority Date: Fri, 7 Jul 2000 10:42:48 -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 Taylor [mailto:jtfrog@usa.net] > > > From: owner-dvd-discuss@eon.law.harvard.edu > > >> So the question is, is circumvention the goal? > > > >I disagree. The question of circumvention (a)(1) turns on whether you > >have authority or not. The question of whether trafficking (a)(2) is > >legal or not turns on (i) designed to circumvent (ii) only limited > >commercial use other than circumvention (iii) is market to > circumvent, > >all three at once. > > > Depends I suppose on your definition of circumvention. I was > thinking of > circumvention with intent to make an illegal copy. If > circumvention is only > used for fair access, is it still circumvention? Ok, your own use of these terms is obscuring the case. You use "circumvention" as a given and then attempt to remove it somehow. "Circumvention" carries with it an implicit judgement as to intent. Try using the term "access" to represent the, well, access of the work in the question instead. Say, instead, "access with intent to make an illegal copy" ... that is indeed circumvention. Now your second question becomes "is access for fair use circumvention?" And the answer is "no". > > > I'm still a bit fuzzy about the whole "authority" thing. What > gives the > copyright holder the right to establish which devices are > authorized? Nothing. That actually leads to an illegal tying argument. >I > assume Hollywood's argument is that players (including > software players that > have been created pursuant to a CSS license) are authorized, > and that DeCSS > is not. That seems to be their argument. >But if DeCSS is used in non-infringing manner, why is > authority > relevant? Ok, here you're losing it again. "Authority" is indeed relevant ... authority to access the work is -always- the relevant issue. What is -not- relevant is whether a particular player is "authorized". It is the -act- that is in question. >If I own the copyright on a book, and I use a > technical method to > protect it (say a little combination lock on the cover), so > that only those > "authorized" by me (with the combination code) can read it, > and someone buys > the book and opens it without my authorization (either by > brute force or by > guessing at the combination code), and all they do is read it > (not copy it), > why is authorization necessary for protecting copyright? Again, authorization actually pertains to the uses made of the work. The person you gave the combination to could read the book, or take it to Kinko's make a dozen copies and distribute them on the street corner. Was he "authorized" to do this second thing just because you gave him the combination so he could read it? No. He was "authorized" to read it. By law he could also print small excerpts if he were writing a review (fair use). But reprinting and distributing? Not authorized ... the lock itself is irrelevant to the question of authorization as it pertains to the use being made of the material. Ok, let's say you say to Fred that he is authorized to read the book ... but you don't give him the combination. Is he justified in picking the lock? Sure -- he has authorization. Again, the lock itself is not indicative of the presence (or absence) of authorization for any given act of access. -- -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 Jul 7 12:06:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10318 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:06:54 -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 MAA10315 for ; Fri, 7 Jul 2000 12:06:52 -0400 Message-ID: <20000707180820.19023.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 07 Jul 2000 11:08:20 PDT Date: Fri, 7 Jul 2000 11:08:20 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Streambox 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 --- Seth David Schoen wrote: > I don't like 106, but I like 1201 even less. Streambox wasn't > prosecuted under 106, you know. "This is not an infringement > case..." More precisely, Streambox included 1201(b)(1) claims, which depend on access for copyright infringement as defined in 106. The 1201(a)(2) claims in Streambox are validated in my mind by the fact that the there is no claim of fair use. > Anyway, sorry if you don't like 107 et seq. :-) I think numerous posts supporting 107 and exploring the expansive readings of fair use in US jurisprudence speak for themselves. > I continue to be really perplexed, first of all, that you distinguish > the Streambox case so strongly from the present case (although there > are some different issues), and, second of all, that you endorse the > result of that case! Streambox has no element of first sale or fair use. The reverse engineering exception fails on the "noninfringing" language clause. I think this is EXACTLY the situtation that Congress was trying to regulate. They want to allow free distribution of encrypted works that can be viewed by buying access. > I keep meaning to write something about why the Streambox precedent > is harmful, even if it provides some theory under which the DMCA > may be interpreted to avoid applying to DeCSS but without being > read out of existence. > First and foremost, the Streambox case touches the issue of free > speech in computer software: we now have an instance of another > piece of contraband software because a company didn't like an > application of that software (and maybe because that software > violated the DMCA). It's astonishing that people aren't getting > more worked up about this, especially considering how low > RealNetworks' reputation had already fallen in some quarters > before its lawsuit. Well, Streambox is a company and their object code (only) is sold, I believe. I assume you can't get the source code form, so I don't think they have much of a case to claim that are trying to communicate programming ideas. I realize there's a fuzzy boundary between source and object code regarding "expression". Commercial speech has a special status under the law, anyway. > The bottom line is that I think it's a terrible precedent in that it > supports banning a computer program under the DMCA. One argument in > the DeCSS case to which some people are quite strongly attached is > "even if the DMCA is constitutional, and even if the DMCA would apply > to DeCSS as a 'circumvention device', the DMCA can't be used to ban > DeCSS, because we have a first amendment right to distribute it". Of > course that argument wouldn't fly under _Streambox_, except as far as > the Streambox folks probably didn't bother to press first amendment > claims. Well, my arguements against the Constitutionality of the DMCA have been based on denial of fair use, free speach, and abuse of the commerce clause for the non-copyright parts of it. I have difficulty making any such arguement against 1201(b)(1) when fair use isn't involved. I also have difficulty making the arguement against 1201(a)(2) when it is a sold product. To argue a first amendment claim for them seems like a pretty big challenge. You'd have to find expression in commercial non-disclosed source object code. There might be a very little amount (the visual artistry of the splash screen, etc...) but unless it communicates the actual method of operation, you could use Kaplan's "these parts aren't banned" arguement. If it was disclosed source, non-commercial, and respected the copy-bit, I might go the other way on Streambox. The respecting the copy-bit becomes unneeded if you can invoke a "first sale" right. > The "benefit" derived from _Streambox_ would be a narrowing of the > interpretation of the DMCA, without invalidating the whole thing, and > clearly establishing that it can apply to computer programs and that > a computer program can potentially be considered a circumvention > device and ruled illegal. Well, an object code only program is certainly "black" and is sold in a "box". The latter might be weak, but it's hard to argue it's not "technology" putting it in scope of the statue. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 12:15:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10462 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:15:10 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10457 for ; Fri, 7 Jul 2000 12:14:55 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA29224 for ; Fri, 7 Jul 2000 13:16:32 -0500 Message-ID: <39661ED1.8A023301@mninter.net> Date: Fri, 07 Jul 2000 13:17:53 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention and authority References: <5A8391CA2D9ED311AFAA080009D982B10B1CB2@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, here you're losing it again. "Authority" is indeed > relevant ... authority to access the work is -always- the > relevant issue. What is -not- relevant is whether a > particular player is "authorized". It is the -act- that > is in question. As you may guess, I disagree. The copyright owner can feel free to authorize however and whatever they see fit. 1201 provides no limitation (strictly speaking, unless we have our way) on what terms that contract may authorize access. It could be by access devices. It could be by uses. It could be by your hair color. It could be at random. The KEY is whether or not those limitations on authorization are supported by existing copyright privleges, whether they are legal, and whether those bound by the limitations agreed to them or knew of them at the time they were sold the good. None is true of the plaintiff's authority model. > Ok, let's say you say to Fred that he is authorized to > read the book ... but you don't give him the combination. > Is he justified in picking the lock? Sure -- he has > authorization. Again, the lock itself is not indicative > of the presence (or absence) of authorization for any > given act of access. The plaintiffs must argue that accessing the work by an unauthorized means is disauthorized because if they do not, there is no lawsuit. This all too recent post (http://eon.law.harvard.edu/archive/dvd-discuss/msg04503.html) has a complete list of the authority model as I understand it. I'd like to see a better one, if it exists. Mostly, I want to hear it from the horse's mouth. They have not, and never would, say that the sale of the DVD grants authority to access because they want 1201 to use as a second hammer against copyright violations, and to limit the abilities of the players (and, therefore, the authorized uses). Notice the long chain of dependencies that lead through tying the work to CSS licensure and the limitations those licenses implicate. As best I can tell, these are all required of the plaintiff's position. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 12:21:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10585 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:21:33 -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 MAA10582 for ; Fri, 7 Jul 2000 12:21:31 -0400 Message-ID: <20000707182256.9303.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 07 Jul 2000 11:22:56 PDT Date: Fri, 7 Jul 2000 11:22:56 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Another approach to "authority" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Richard Hartman wrote: > 1) "Circumvention" is -defined- (or so I understand) as "access > without authorization". > > 2) DeCSS provides the "access", that is uncontested. I contest this. DeCSS provides "use", not access. Access is provided by the contract of sale that constitutes first sale combined with physical possession of the media. You have to have access to a copy (fixed in a tangible medium) in order to use it. DeCSS does descramble, but not for the purpose of access. > 3) Now we need to establish the "authorization", or lack thereof. Authorization is provided as consideration for the money offered during the sale. This must be so by the jurisprudence that says that private performance is not among the exclusive rights retained after first sale. See PREI, INC. v. COLUMBIA PICTURES 508 U.S. 49 (1993) [noting that renting movies for in-room hotel viewing does not violate the Copyright Act] http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=508&page=49 Moreover, any claim that access was denied for this purpose fails because the grant of "for home viewing only" abandoned access for this purpose. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 12:34:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10881 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:34:47 -0400 Received: from dial64.roadrunner.com (dial64.cybermesa.com [209.12.75.64] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10877 for ; Fri, 7 Jul 2000 12:34:43 -0400 Received: (from paul@localhost) by dial64.roadrunner.com (8.8.7/8.8.7) id MAA01493 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Jul 2000 12:37:00 -0600 Date: Fri, 7 Jul 2000 12:36:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000707123658.A1031@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB1@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CB1@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Jul 07, 2000 at 10:29:55AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 10:29:55AM -0700, Richard Hartman wrote: > 1) "Circumvention" is -defined- (or so I understand) as "access without > authorization". > > 2) DeCSS provides the "access", that is uncontested. I'm going to change my mind and start contesting. I know I've been saying that access is basically decoding/descrambling of the ciphertext, but that leads to a _weird_ conclusion. It means that the "access" in 1201(a)(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. (access is referenced circularly!), *is* the "process" mentioned in the same sentence. This is too clever by half. As I was once told very nicely by a lawyer, statutory construction says that when different words are used, different meanings should be understood. My reading would have used what is properly understood to be the test of "effectively" to define "access". This attempt to escape circularity will not fly. It's dragon bait. I think that leaves us with "access" being the point at which a person first acquires the work from the copyright owner. I'm not arguing for 1201-access to be the same as infringement access (because it references the work), but it can't keep happening over and over again. If it does happen over and over again, every time the "play" button is pushed, then 1201-access would only be pretextually different from decoding or descrambling. The thing which one can point to that is different from "over-and-over" is the time and place where a member of the audience acquires the work from the copyright owner. That is "access". > 3) Now we need to establish the "authorization", or lack thereof. A. Stolen DVD in player "vs." purchased DVD in player. Player is not authorization. B. 1:1 functionality in the realm of descrambling. DeCSS is just as authorized as Xing was in Oct. 1999. C. "For home use". Copyright owner, at a minimum does not disclaim authority. D. EULA License attached to DVD-CCA-licensed Player disclaims authority. More ... ? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 12:36:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10974 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:36:34 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10971 for ; Fri, 7 Jul 2000 12:36:32 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA31825 for ; Fri, 7 Jul 2000 13:38:10 -0500 Message-ID: <396623E1.AD5CDEF@mninter.net> Date: Fri, 07 Jul 2000 13:39:29 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000707182256.9303.qmail@web509.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: > I contest this. DeCSS provides "use", not access. Access is provided > by the contract of sale that constitutes first sale combined with > physical possession of the media. You have to have access to a copy > (fixed in a tangible medium) in order to use it. DeCSS does > descramble, but not for the purpose of access. I disagree, I think this confuses the semantics. Access is an act. Access is made with or without *authority*, which is "provided by the contract of sale that constitutes first sale." DeCSS provides access, either with or without authorization. Think of it in terms of satellite television. I have (your)access to the signal all day long, but if I (my)access the cleartext without authorization, I am circumventing. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 12:42:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11082 for dvd-discuss-outgoing; Fri, 7 Jul 2000 12:42:32 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11079 for ; Fri, 7 Jul 2000 12:42:31 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id OAA06800; Fri, 7 Jul 2000 14:45:08 -0400 Message-ID: <39662534.11DD8F15@mit.edu> Date: Fri, 07 Jul 2000 14:45:08 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> <396564C2.D5065C32@mninter.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 Chris Moseng wrote: > "On November 5, 40,000 pirate DVDs (manufactured in Taiwan) were among > the results of a series of raids on 15 offices, distribution centers and > warehouses;" > > http://www.iipa.com/html/rbc_hong_kong_301_99.html This is a wonderful article. It also prominently mentions the seizure of a "pirate DVD mastering and replication setup" and attaches great significance to it. Unless I am gravely mistaken a mastering and replication setup is what pirates could use to create non-recordable, CSS-encrypted DVDs that include working key sectors. We need to get the evidence of this setup in and ask plaintiffs what DVD players and DeCSS would do with DVDs produced by this setup. (I think they would play them without a problem even though the DVD could not possibly be authorized). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 13:16:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11972 for dvd-discuss-outgoing; Fri, 7 Jul 2000 13:16:51 -0400 Received: from dial117.roadrunner.com (dial117.cybermesa.com [209.12.75.117] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA11969 for ; Fri, 7 Jul 2000 13:16:47 -0400 Received: (from paul@localhost) by dial117.roadrunner.com (8.8.7/8.8.7) id NAA01808 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Jul 2000 13:19:21 -0600 Date: Fri, 7 Jul 2000 13:19:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000707131919.A1515@localhost> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <396623E1.AD5CDEF@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <396623E1.AD5CDEF@mninter.net>; from moseng@mninter.net on Fri, Jul 07, 2000 at 01:39:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 01:39:29PM -0500, Chris Moseng wrote: > Bryan Taylor wrote: > > > I contest this. DeCSS provides "use", not access. Access is provided > > by the contract of sale that constitutes first sale combined with > > physical possession of the media. You have to have access to a copy > > (fixed in a tangible medium) in order to use it. DeCSS does > > descramble, but not for the purpose of access. > > I disagree, I think this confuses the semantics. Access is an act. > Access is made with or without *authority*, which is "provided by the > contract of sale that constitutes first sale." Yes, but which act? If access is the things that happen when one pushes the play button, then there is a problem with statutory construction. Two different words are used for "process" and "access". Scrambling done by CSS is the "process". Access would then be "descrambling". That's a pretty hard sell. "[P]rocess" is part of the definition of "effectively", while "access" isn't defined. Anything that implicitly takes access to be the process will run up against this problem. > DeCSS provides access, either with or without authorization. I'm not so sure of that any more. DeCSS might implement the inverse of a "process", it certainly "descramble[s] ... [or] ... decrypt[s]", but I think it doesn't fit well with the statute to say it provides "access". > Think of it in terms of satellite television. I have (your)access to the > signal all day long, but if I (my)access the cleartext without > authorization, I am circumventing. In this scenario, access occurs when the service contract is formed, not when the signal is decrypted. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 14:41:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA13557 for dvd-discuss-outgoing; Fri, 7 Jul 2000 14:41:55 -0400 Received: from mail.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA13554 for ; Fri, 7 Jul 2000 14:41:53 -0400 Received: from [216.27.56.74] (helo=mindspring.com ident=jeffw) by mail.ivc.com with esmtp (Exim 3.15 #1) id 13AeyT-00016b-00 for dvd-discuss@eon.law.harvard.edu; Fri, 07 Jul 2000 16:43:49 -0400 Message-ID: <396640C2.F66E90E8@mindspring.com> Date: Fri, 07 Jul 2000 16:42:42 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens 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 sam th wrote: > > > (3) Does the tying arrangement force purchases that would not otherwise be > made? > Yes. Some of us might want to get our DVD players from people other than > those authorized by the DVDCCA. One thing that bothers me is what are the other players *avaliable right now* or indeed avaliable back in October that consumers are being denied access? Perhaps none. What DVD-CCA and the MPAA have in effect eliminated the competition before the fact. > > > Finally, if the burden for per se liability has not been met, then > (4) Does the tying arrangement unreasonably restrain competition? > First, I think we have made the per se case. Second, according the the > MPAA, there is no legal competiontion outside of the bounds they have set > (agreements and money with DVDCCA). That sounds like restraint of > competition to me. Yea to that (see above) -Jeff From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 15:00:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA13764 for dvd-discuss-outgoing; Fri, 7 Jul 2000 15:00:55 -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 PAA13761 for ; Fri, 7 Jul 2000 15:00:53 -0400 Message-ID: <20000707210220.13595.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 07 Jul 2000 14:02:20 PDT Date: Fri, 7 Jul 2000 14:02:20 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Another approach to "authority" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Chris Moseng wrote: > Bryan Taylor wrote: > > I contest this. DeCSS provides "use", not access. Access is > > provided by the contract of sale that constitutes first sale > > combined with physical possession of the media. You have to > > have access to a copy (fixed in a tangible medium) in order > > to use it. DeCSS does descramble, but not for the purpose > > of access. > > I disagree, I think this confuses the semantics. Access is an act. > Access is made with or without *authority*, which is "provided by the > contract of sale that constitutes first sale." I think you misread my statement, the key part is possession of a copy fixed in a tangible medium, the other part is sufficient to show it was lawfully obtained. I said basically "first sale + possession => access" This is inline with the definition of access that is the "means, right, or act of approaching, entry, or use". > DeCSS provides access, either with or without authorization. I would say DeCSS provides use, with or without authorization. Note that fair use, does not require authorization, and can be exercised even over explicit objections of the copyright owner. > Think of it in terms of satellite television. I have (your)access to > the signal all day long, but if I (my)access the cleartext without > authorization, I am circumventing. Actually, you certainly don't have "first sale" since a signal is not fixed in a tangible medium. I doubt you have "possession" of a copy either - if you do (say by storing the signal) they you have to justify the *legality* of it in some other way than first sale. I suppose if you are piping the signal into some kind of signal processor, then you briefly "possess" it, but you still have to justify any conversion of it into a descrambled form. First sale is one way to legitimize this, but the DMCA was created to allow alternatives whereby payment is possibly triggered by some other event than the delivery of the copy. All methods of legitimizing the possession should require some sort of consideration being accepted in return (or an explicit gift). I think the following equivalence would hold: access <=> possession of copy + (consideration or gift) For DeCSS, you paid for and accepted possession of the DVD. For Streambox, there was neither consideration nor gift. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 15:05:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA13916 for dvd-discuss-outgoing; Fri, 7 Jul 2000 15:05:42 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA13913 for ; Fri, 7 Jul 2000 15:05:41 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA14591 for ; Fri, 7 Jul 2000 16:07:39 -0500 (CDT) Message-ID: <39664660.28870428@uic.edu> Date: Fri, 07 Jul 2000 16:06:40 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" 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 Crhis Moseng writes: > Think of it in terms of satellite television. I have (your)access to the > signal all day long, but if I (my)access the cleartext without > authorization, I am circumventing. So, for the purposes of 1201, when did the authorization take place? 1) When you entered the contract with the satellite company? 2) When the satellite company enabled your setbox? 3) When both had occurred? 4) Something else? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 15:14:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14085 for dvd-discuss-outgoing; Fri, 7 Jul 2000 15:14:49 -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 PAA14082 for ; Fri, 7 Jul 2000 15:14:48 -0400 Message-ID: <20000707211617.8706.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 07 Jul 2000 14:16:17 PDT Date: Fri, 7 Jul 2000 14:16:17 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Another approach to "authority" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > [...] while "access" isn't defined. I agree that access isn't defined. It seems like a powerful argument to simply say, look, access can mean X or it can mean Y. If you accept definition X you have to answer Constitutional questions (balancing speech v copyright protection) and suffer a chilling effect as people can't decide whether or not they can release their code. If you accept definition Y, you avoid Constitutional questions and no chilling effect is created. Or perhaps, you can simply apply the void-for-vagueness doctrine. Of course you shouldn't have to do this because 1201(c)(4) disallows any speech infringing under the law [except that Kaplan has decided to ignore this and legislate from the bench]. __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 15:19:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA14205 for dvd-discuss-outgoing; Fri, 7 Jul 2000 15:19:19 -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 PAA14202 for ; Fri, 7 Jul 2000 15:19:18 -0400 Message-ID: <20000707212046.10756.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 07 Jul 2000 14:20:46 PDT Date: Fri, 7 Jul 2000 14:20:46 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Appeal Prelim Injuction based on 1203(b)(1) to get time 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 Instead of appealing endlessly to the judge for more time that he refuses to give, it seems like a better strategy would be to appeal the preliminary injunction to the 2nd Circuit Court of Appeals and ask for a halt to the proceedings below until there is a ruling. An appeal based solely on 1203(b)(1) should suffice to get Kaplan's attention to this point. I don't see any way that a reasonably person could "assume that DeCSS is protected speech" and grant a prior restraint injunction and believe they had followed 1203(b)(1). __________________________________________________ Do You Yahoo!? Send instant messages & get email alerts with Yahoo! Messenger. http://im.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 15:44:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA15025 for dvd-discuss-outgoing; Fri, 7 Jul 2000 15:44:08 -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 PAA15022 for ; Fri, 7 Jul 2000 15:44:07 -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:2.21) with ESMTP id RAA17337 for ; Fri, 7 Jul 2000 17:46:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA01755; Fri, 7 Jul 2000 17:46:00 -0400 (EDT) Date: Fri, 7 Jul 2000 17:46:00 -0400 (EDT) Message-Id: <200007072146.RAA01755@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "authority" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CB0@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB0@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > > Under such circumstances, such a > > technological measure may materially degrade or otherwise > > cause recurring appreciable adverse effects on the authorized > > performance or display of works. Steps taken by the makers or > > servicers of consumer electronics, telecommunications or > > computing products used for such authorized performances or > > displays solely to mitigate these adverse effects on product > > performance (whether or not taken in combination with other > > lawful product modifications) shall not be deemed a violation > > of sections 1201(a) or (b). > > This seems to certify that the technological protection measure > can >not< be used as part of the authorization process. Nu? If a cable operator downloads a key for a pay-per-view data stream into a set-top box (which is 1201 access control if *anything* is, and repeatedly cited in the legislative history as the sort of thing that they mean to protect), that is certainly a technological protection measure being used as part of an authorization process. What it does mean, and perhaps what you meant to say, is that it can't be the *whole* of the process --- copyright holders cannot simply take some arbitrary technological measure (e.g., some ill-chosen collection of LFSRs with particular random inputs), and declare it to *be* a 1201(a) effective access control measure, unless that technological measure actually performs a meaningful access control check. Or, in the words of one Senator (Ashcroft): As my colleagues may recall, I had been very concerned that S. 2037 could be interpreted as a mandate on product manufacturers to design products so as to affirmatively respond to or accommodate technological protection measures that copyright owners might use to deny access to or the copying of their works. To address this potential problem, I authored an amendment providing that nothing in the bill required that the design of, or design and selection of parts and components for, a consumer electronics, telecommunications, or computing product provide for a response to any particular technological protection measure. The amendment reflected my belief that product manufacturers should remain free to design and produce the best, most advanced consumer electronics, telecommunications, and computing products without the threat of incurring liability for their design decisions. Creative engineers--not risk-averse lawyers--should be principally responsible for product design. This is from the debate on the final bill, as reported out of the conference committee. If you want more, you know where to find it... > It also > gives us "home use" of DeCSS if "home use" is indeed the authorization > granted at first sale. That's how it looks to me. IANAL. > This little paragraph from the conference > comittee report could be >very< important to winning this case. I thought so the first time I posted it... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 16:11:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15582 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:11:16 -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 QAA15579 for ; Fri, 7 Jul 2000 16:11:15 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CBPT>; Fri, 7 Jul 2000 15:13:15 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 15:13:13 -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: > > 1) "Circumvention" is -defined- (or so I understand) as "access > > without authorization". > > > > 2) DeCSS provides the "access", that is uncontested. > > I contest this. DeCSS provides "use", not access. Access is > provided by > the contract of sale that constitutes first sale combined > with physical > possession of the media. You have to have access to a copy (fixed in a > tangible medium) in order to use it. DeCSS does descramble, > but not for > the purpose of access. I may have to give you that one ... I am not a laywer, and the legal definitions of "use" vs. "access" could well be such that you are correct. I was speaking in terms of access to the data in a usable form ... which is what DeCSS does (once you have physical access to the DVD). However I will re-contest your statment this far: "authority" is what is provided by the contract of sale. > > > 3) Now we need to establish the "authorization", or lack thereof. > > Authorization is provided as consideration for the money > offered during > the sale. This must be so by the jurisprudence that says that private > performance is not among the exclusive rights retained after first > sale. > See PREI, INC. v. COLUMBIA PICTURES 508 U.S. 49 (1993) [noting that > renting movies for in-room hotel viewing does not violate the > Copyright > Act] > http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court =US&vol=508&page=49 Moreover, any claim that access was denied for this purpose fails because the grant of "for home viewing only" abandoned access for this purpose. Yeah, yeah ... but apparently Kaplan has not been using this. By "we need to establish" I am speaking about in this court, in this case. His statements seem to be granting circumvention already, which in turn -assumes- a lack of authority. We need to challenge this assumption on his part. -- -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 Jul 7 16:13:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15667 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:13:15 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA15664 for ; Fri, 7 Jul 2000 16:13:14 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id PAA14155 for ; Fri, 7 Jul 2000 15:15:05 -0700 Date: Fri, 7 Jul 2000 15:15:04 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case In-Reply-To: <20000707165857.5164.qmail@web512.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 I smell a troll, but I'll just throw out a few things. On Fri, 7 Jul 2000, Bryan Taylor wrote: > I'm sorry you think the copy-bit is an "obnoxious restriction". It is > really nothing more that an explicit statement of authorization status > to copy the author's copyrighted work. Bummer if you think of 17 USC > 106 as an obnoxious restriction. You have no right to be able to copy > this work unless the bit is set to "ok to copy". That's NOT true. I have a right to make non-infringing copies. Time-shifting, for example, has been protected over and over. I don't need a copyright holder's permission to make copies for personal use. > Umm, there are plenty of alternatives to their player. You make it > sound like they are a monopoly on content distribution over the > internet. That is absurd. They've purposely designed a closed, proprietary media format in order to preclude others from making players and encoders, rather than opening a format and creating the best product of that type. This leads into a whole pile of anti-competitive practices (like giving away their streaming server to some ISPs at a loss in order to increase their player market-share in order to, in turn, sell more authoring tools). > By the way, microsoft is in active competition with them, so > RealNetworks are the "little guys". In fact, if you have a webserver > up, then YOU are in competition with them. Microsoft owns at least ten percent of RealNetworks... has since 1996. > > Streambox made an alternative player which does not have any > > restrictions. > Translation: that commits and allows simple copyright infringement. First, copying is not illegal. Illegal copying is illegal. There is such a thing as legal copying. Any device that allows fair use to be exercised also allows simple copyright infringement. Second, was it ever shown that Streambox was used to illegally access work copyrighted by RealNetworks itself? > > RealNetworks claims that this is an unauthorized circumvention > > device. > Which is it not? It's not authorized to access. It does access. It does > bypass encryption based authentication. Sounds like access > circumvention of TPMs to me. Where is authorization? Do your RealAudio streams come with disclaimers saying not only who owns the copyright but also what authorizes access? That much is EXACTLY like the DVD case in my mind. > The authority to copy is communicated from the copyright holder who > sets the copybit to the user using RealNetworks protocol, which the > author endorses by placing his material in the RealServer product. Copybits deny fair use if strictly implemented. Copybits like those involved in SCMS also protect big business by making ot more difficult and expensive to create public domain recorded works and distribute them. > If Emmanuel Goldstein authorized RealNetworks to provide access to his > radio program by placing a copy of it inside their encrypted channel > (ie putting it on a RealServer) the he, not RealNetworks has denied you > the priviledge of accessing THAT PARTICULAR COPY using Streambox. I > doubt he actually does this, but if he did I bet he makes it available > in other ways. I also be this sets the copy-bit to "ok". Since he > doesn't control both content and delivery protocol there is no tying > problem either. You're saying that by encoding in RealAudio format, any content creator is going so far as to say that they only authorize access with RealPlayer? I find this hard to believe. I think the content creator is saying "Here is an internet available audio stream and I don't know how else to make it available." I'd like to see where the creation software informs the copyright holders of this authorization limitation. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 16:16:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15740 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:16:54 -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 QAA15737 for ; Fri, 7 Jul 2000 16:16:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CBQP>; Fri, 7 Jul 2000 15:18:54 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 15:18:53 -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 think what we have here is a conflation of two uses of "access". One -- the one used by Bryan when he contested my statement -- may be characterized as "physical access". This use of "access" has possibly been used in copyright law in the past, as it was one of the pertinant issues. However, w/ digital data, physical access is not the only form of access under discussion. The second use of "access" is access to the data in a usable form. This use is more in keeping w/ 1201 in that 1201 is discussing technological "access" control methods and encryption in the same breath. I suggest that for purposes of discussion, the first form (physical access) could and should be referred to as "possession" in order to avoid confusion with the other. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] > Sent: Friday, July 07, 2000 11:39 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "authority" > > > Bryan Taylor wrote: > > > I contest this. DeCSS provides "use", not access. Access is provided > > by the contract of sale that constitutes first sale combined with > > physical possession of the media. You have to have access to a copy > > (fixed in a tangible medium) in order to use it. DeCSS does > > descramble, but not for the purpose of access. > > I disagree, I think this confuses the semantics. Access is an act. > Access is made with or without *authority*, which is "provided by the > contract of sale that constitutes first sale." > > DeCSS provides access, either with or without authorization. > > Think of it in terms of satellite television. I have > (your)access to the > signal all day long, but if I (my)access the cleartext without > authorization, I am circumventing. > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 16:25:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15838 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:25:36 -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 QAA15835 for ; Fri, 7 Jul 2000 16:25:34 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CBQ7>; Fri, 7 Jul 2000 15:27:35 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 15:27:34 -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] > > > --- Chris Moseng wrote: > > Bryan Taylor wrote: > > > I contest this. DeCSS provides "use", not access. Access is > > > provided by the contract of sale that constitutes first sale > > > combined with physical possession of the media. You have to > > > have access to a copy (fixed in a tangible medium) in order > > > to use it. DeCSS does descramble, but not for the purpose > > > of access. > > > > I disagree, I think this confuses the semantics. Access is an act. > > Access is made with or without *authority*, which is > "provided by the > > contract of sale that constitutes first sale." > > I think you misread my statement, the key part is possession of a copy > fixed in a tangible medium, the other part is sufficient to > show it was > lawfully obtained. I said basically > > "first sale + possession => access" This equation appears to force access upon the buyer. I am not forced to open the covers of the book as soon as I buy it. Access is an act which the possessor of a work -may- excercise at a time of his or her own choosing. Conversely, you could easily -access- a DVD that you stole from me ... how would that jibe with your equation, since "first sale" would not be present? Authority is conveyed by first sale (for home use, at least). Circumvention is access in the absence of authority. > > This is inline with the definition of access that is the > "means, right, > or act of approaching, entry, or use". > > > DeCSS provides access, either with or without authorization. > > I would say DeCSS provides use, with or without authorization. Given the definition of access that you just gave, if DeCSS provides use it provides it by giving access (not by right, but by means). >Note > that fair use, does not require authorization, and can be exercised > even over explicit objections of the copyright owner. I would rather invert that and state that fair use -provides- authorization for some uses... > -- -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 Jul 7 16:30:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15995 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:30:16 -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 QAA15992 for ; Fri, 7 Jul 2000 16:30:15 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CBRF>; Fri, 7 Jul 2000 15:32:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Fri, 7 Jul 2000 15:32:12 -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 > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Friday, July 07, 2000 2:46 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "authority" > > > Richard Hartman writes: > > > Under such circumstances, such a > > > technological measure may materially degrade or otherwise > > > cause recurring appreciable adverse effects on the authorized > > > performance or display of works. Steps taken by the makers or > > > servicers of consumer electronics, telecommunications or > > > computing products used for such authorized performances or > > > displays solely to mitigate these adverse effects on product > > > performance (whether or not taken in combination with other > > > lawful product modifications) shall not be deemed a violation > > > of sections 1201(a) or (b). > > > > This seems to certify that the technological protection measure > > can >not< be used as part of the authorization process. > > Nu? If a cable operator downloads a key for a pay-per-view data > stream into a set-top box (which is 1201 access control if *anything* > is, and repeatedly cited in the legislative history as the sort of > thing that they mean to protect), that is certainly a technological > protection measure being used as part of an authorization process. It's not part of process, it's an implementation detail ;-) "authority" is a non-physical, legal concept. You get the -authority- to view the pay-per-view broadcast when you pay the cable company. Nothing physical (except money) is exchanged, yet you now have "authority". In order to provide you with the capabilities implied by that authority, the cable company provides you (or your equipment) with the decryption key. This is a separate issue. This is the technological access control measure ... but it is not part of the -legal- issue of transfer of authority. -- -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 Jul 7 16:34:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16066 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:34:49 -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 QAA16063 for ; Fri, 7 Jul 2000 16:34:48 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CBRM>; Fri, 7 Jul 2000 15:36:45 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CB9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Declaration of Michael Shamos Date: Fri, 7 Jul 2000 15:36:41 -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 4k below would be a very interesting question to ask... -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] > Sent: Monday, July 03, 2000 11:42 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Declaration of Michael Shamos > > > > > > 4. Is DeCSS a necessary step in performing the acts in > this declaraion? > > > > 4a. DoD Speed ripper could do this too, yes or no? > > 4b. DeCSS has two "functions", (i) descrambling and (ii) > transfer of a copy > > to a new medium. Do you object to DeCSS's function of decryption? > > 4c. How do you distinguish the *function* of descrambling > as performed > > by DeCSS from the *function* of descrambling performed by > the Xing player? > > 4d. Is it possible to play a CSS'ed movie without descrambling? > > [Yes, I know this looks redundant with 4e, but it isn't. > The P's make > > the claim that "you can't plug all the holes". This is why it is so > > important to distinguish access control from rights/copy > control. Access > > isn't a hole to be plugged. If they did that, there would > be no movie > > to watch.] > > 4e. Is it _necessary_ to descramble a CSS'ed movie to watch it? > > 4f. If the P's object to coupling (i) and (ii) above, why is this > > a 1201(a)(2) suit, and not a 1201(b)(1) suit? > > A few more along that line: > > 4g. What are the functions of DeCSS? > > (assuming decryption and copying): > 4h. Does a normal DVD player decrypt the DVD to play it? > > 4i. Does a normal DVD player have to copy the results of that > decryption somewhere to play it, including into ram or the input of > another operation of the same software? > > 4i. Does DeCSS decrypt the DVD using the same means as a normal DVD > player in the course of its operation? > > 4j. Could DeCSS, or some derivation of its source code, be used as a > portion of a normal DVD player? > > 4k. Can one create an operational DVD player that does not perform the > functions that DeCSS performs? > > 4l. Must DeCSS copy files to a hard drive, or can the code be modified > to put it somewhere else? RAM? The input of another program? > Directly to > the screen? To a printer? > > 4m. For a typical programmer, how difficult would modifying the > destination of the output be? > > 4n. Do programmers often create software in independantly functioning > pieces, only to assemble them at a later date? > > 4o. Might DeCSS be an indepentantly functioning part of a larger > program, such as a DVD player? > > Some of these are minor variations on the ones suggested by Paul, for > variety. I guess since the professor teaches CS at Carnegie > Mellon this > might all be fair game for him to address (unless they decide > he's going > to be a witness on the law rather than the technology). Make him into > our witness ;) > > Chris > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 16:55:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16198 for dvd-discuss-outgoing; Fri, 7 Jul 2000 16:55:01 -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 QAA16195 for ; Fri, 7 Jul 2000 16:54:58 -0400 Received: (from paul@localhost) by dial241.roadrunner.com (8.8.7/8.8.7) id QAA02288 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Jul 2000 16:57:36 -0600 Date: Fri, 7 Jul 2000 16:57:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access, was: Another approach to "authority" Message-ID: <20000707165734.A2155@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Jul 07, 2000 at 03:18:53PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 03:18:53PM -0700, Richard Hartman wrote: > In think what we have here is a conflation of two uses > of "access". One -- the one used by Bryan when he > contested my statement -- may be characterized as "physical > access". This use of "access" has possibly been used in > copyright law in the past, as it was one of the pertinant > issues. > > However, w/ digital data, physical access is not the only > form of access under discussion. The second use of "access" > is access to the data in a usable form. This use is more in > keeping w/ 1201 in that 1201 is discussing technological > "access" control methods and encryption in the same breath. The fly in this ointment is that (a)(3)(B) refers to both "access" and "process". The "process" in the case of CSS is scrambling/encrypting a work. If we take the def'n of "access" you are suggesting, that has the bizarre result of saying that "access" is "_de_scrambling". So "scrambling" data would effectively control the "descrambling" of the work? This hasn't solved the problem of defining "access". This line of reasoning doesn't remove the circular reference to "access" in (a)(3)(B). It removes the word "process" from its role as a test of effectiveness and inserts it into the swamp of "access"-circularity. "Access" has to be something protected by "[the] process", it can't simply be the undoing of the "process". > I suggest that for purposes of discussion, the first form > (physical access) could and should be referred to as "possession" > in order to avoid confusion with the other. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 17:02:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16356 for dvd-discuss-outgoing; Fri, 7 Jul 2000 17:02:10 -0400 Received: from mail.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16353 for ; Fri, 7 Jul 2000 17:02:09 -0400 Received: from [216.27.56.74] (helo=mindspring.com ident=jeffw) by mail.ivc.com with esmtp (Exim 3.15 #1) id 13AhAG-0001Qo-00 for dvd-discuss@eon.law.harvard.edu; Fri, 07 Jul 2000 19:04:08 -0400 Message-ID: <396661A0.FF7ED376@mindspring.com> Date: Fri, 07 Jul 2000 19:02:56 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > In think what we have here is a conflation of two uses > of "access". One -- the one used by Bryan when he > contested my statement -- may be characterized as "physical > access". This use of "access" has possibly been used in > copyright law in the past, as it was one of the pertinant > issues. > > However, w/ digital data, physical access is not the only > form of access under discussion. The second use of "access" > is access to the data in a usable form. This use is more in > keeping w/ 1201 in that 1201 is discussing technological > "access" control methods and encryption in the same breath. > > I suggest that for purposes of discussion, the first form > (physical access) could and should be referred to as "possession" > in order to avoid confusion with the other. Not so fast. Although I agree that the legal history until lately did not deal directly with the digital form (because it did not exist) and thus will not enlighnen us as to a distinction of physical access (possession as you call it) and digital access, I'm not so sure that w.r.t. DVD's the 2 types are so "cut at dried" different. The reason being that DVD as a copyrightable form is a sort of merger of the old and the new. New in that it's digital (though nevertheless like CD's which predate it) and old in that the purchase of a copy constitutes an transfer of something physical. So perhaps access of old meant physical access, (but maybe not) however, we can argue that it should mean digital access too. That is if you are granted physical access to copy of a copyrighted work (you possess it) then you are also given digital access to a copy of a copyrighted work. Both must be granted for otherwise the work is useless to you though you own it, and so if one must always follow from the other then we may speak of them in the same breath as two aspects of the same thing. I'm simply worried that if we immediately distinguish the two in our own discussions then we may be overlooking a strong yet subtle line of argument. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 17:05:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16494 for dvd-discuss-outgoing; Fri, 7 Jul 2000 17:05:15 -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 RAA16491 for ; Fri, 7 Jul 2000 17:05:13 -0400 Received: (from paul@localhost) by dial241.roadrunner.com (8.8.7/8.8.7) id RAA02299 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Jul 2000 17:07:57 -0600 Date: Fri, 7 Jul 2000 17:07:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000707170756.B2155@localhost> References: <20000707211617.8706.qmail@web511.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000707211617.8706.qmail@web511.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Jul 07, 2000 at 02:16:17PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 02:16:17PM -0700, Bryan Taylor wrote: > > --- Paul Fenimore wrote: > > [...] while "access" isn't defined. > > I agree that access isn't defined. > > It seems like a powerful argument to simply say, look, access can mean > X or it can mean Y. If you accept definition X you have to answer > Constitutional questions (balancing speech v copyright protection) and > suffer a chilling effect as people can't decide whether or not they can > release their code. If you accept definition Y, you avoid > Constitutional questions and no chilling effect is created. > > Or perhaps, you can simply apply the void-for-vagueness doctrine. Of > course you shouldn't have to do this because 1201(c)(4) disallows any > speech infringing under the law [except that Kaplan has decided to > ignore this and legislate from the bench]. I've been distracted by this second one all afternoon. The fact that access is referenced circularly in (a)(3)(B) should raise void-for-vagueness flags. It appears that the authors of 1201 and Kaplan are assuming that a suitably precise definition of access if obvious from pre-existing law. I don't think that's true at all. A. The def'n in infringement law isn't settled to begin with. B. Nimmer's favored def'n is opportunity to view. It seems like the act of publication and wide-spread distribution meets this def'n. No need to go near first-sale. The copyright owners wouldn't like publication to be the time of access. CSS doesn't protect the act of publication any more than it protects first-sale with a tangible copy. C. I'm not so sure that Y avoids Constitutional issues. The "possession" + "gift" = "authorization" model is something that the P's will argue against strenuously. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 17:35:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16664 for dvd-discuss-outgoing; Fri, 7 Jul 2000 17:35:01 -0400 Received: from orange.fenimore.org (dial214.cybermesa.com [209.12.75.214] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16661 for ; Fri, 7 Jul 2000 17:34:48 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id RAA02431 for dvd-discuss@eon.law.harvard.edu; Fri, 7 Jul 2000 17:37:31 -0600 Date: Fri, 7 Jul 2000 17:37:25 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000707173725.C2155@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com> <396661A0.FF7ED376@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <396661A0.FF7ED376@mindspring.com>; from jeff-w@mindspring.com on Fri, Jul 07, 2000 at 07:02:56PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 07:02:56PM -0400, Jeff Waller wrote: > Richard Hartman wrote: > > > In think what we have here is a conflation of two uses > > of "access". One -- the one used by Bryan when he > > contested my statement -- may be characterized as "physical > > access". This use of "access" has possibly been used in > > copyright law in the past, as it was one of the pertinant > > issues. > > > > However, w/ digital data, physical access is not the only > > form of access under discussion. The second use of "access" > > is access to the data in a usable form. This use is more in > > keeping w/ 1201 in that 1201 is discussing technological > > "access" control methods and encryption in the same breath. > > > > I suggest that for purposes of discussion, the first form > > (physical access) could and should be referred to as "possession" > > in order to avoid confusion with the other. > > Not so fast. Although I agree that the legal history until lately did not > deal directly with the digital form (because it did not exist) and thus > will not enlighnen us as to a distinction of physical access (possession > as you call it) and digital access, I'm not so sure that w.r.t. DVD's > the 2 types are so "cut at dried" different. 1. The P's blab about digital when the want to mention the (relative) absence of generational loss on copying. That's properly the domain of 1201(b) and 106(1), not 1201(a). 2. The ciphertext is just as resistant to generational loss as the plaintext. 3. The real issue in 1201(a) is "electronic" transmission of a work. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 17:48:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16847 for dvd-discuss-outgoing; Fri, 7 Jul 2000 17:48:17 -0400 Received: from ts0210.bates.edu (root@ts0211.bates.edu [134.181.72.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16843 for ; Fri, 7 Jul 2000 17:48:09 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id TAA00896 for ; Fri, 7 Jul 2000 19:53:50 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 7 Jul 2000 19:53:48 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention and authority In-Reply-To: <39661ED1.8A023301@mninter.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 7 Jul 2000, Chris Moseng wrote: > > Ok, here you're losing it again. "Authority" is indeed > > relevant ... authority to access the work is -always- the > > relevant issue. What is -not- relevant is whether a > > particular player is "authorized". It is the -act- that > > is in question. > > As you may guess, I disagree. The copyright owner can feel free to > authorize however and whatever they see fit. 1201 provides no limitation > (strictly speaking, unless we have our way) on what terms that contract > may authorize access. It could be by access devices. It could be by > uses. It could be by your hair color. It could be at random. > This cannot be true. Access *must* be granted to people for it to make any sense at all (not legally, but logically). It can be granted to an intersection of a group of people, and some other test, but the people are required. Otherwise, if you steal all the required components, you would be authorized. Therefore, although posession is 9/10 of the law, it cannot be 9/10 of authorization. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5Znudt+kM0Mq9M/wRApweAJ9rR/DlfkE+XnKCHf5jsyxp0eYIWgCgg4G8 bY4YqWYQdkHwIt97/QB0lYU= =pr8E -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 17:55:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16985 for dvd-discuss-outgoing; Fri, 7 Jul 2000 17:55:27 -0400 Received: from ts0210.bates.edu (root@ts0211.bates.edu [134.181.72.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16982 for ; Fri, 7 Jul 2000 17:55:23 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id UAA00920 for ; Fri, 7 Jul 2000 20:01:05 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 7 Jul 2000 20:01:03 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens In-Reply-To: <396640C2.F66E90E8@mindspring.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 7 Jul 2000, Jeff Waller wrote: > sam th wrote: > > > > > > > (3) Does the tying arrangement force purchases that would not otherwise be > > made? > > Yes. Some of us might want to get our DVD players from people other than > > those authorized by the DVDCCA. > > One thing that bothers me is what are the other players *avaliable right now* > or indeed avaliable back in October that consumers are being denied > access? Perhaps none. What DVD-CCA and the MPAA have in effect > eliminated the competition before the fact. First, the MPAA is attempting to deny access to DeCSS (actually, all non-approved DVD players). Second, I cannot believe that the abscence of other players would legalize otherwise blatantly illegal acts. An agreement can be in "restraint of trade" even if the parties have no competition. In fact, the DVDCCA is *designed* not to have competition. Their success at this should not make it legal. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5Zn1Qt+kM0Mq9M/wRAl3yAJ4696PXLIqNLvKcnh49knj7jzob0ACfX9T+ m+BznpzA1lTo2jD9xJfVrUU= =nt4P -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 18:46:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17214 for dvd-discuss-outgoing; Fri, 7 Jul 2000 18:46:44 -0400 Received: from ts0210.bates.edu (root@ts0211.bates.edu [134.181.72.141]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17211 for ; Fri, 7 Jul 2000 18:46:41 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id UAA01009 for ; Fri, 7 Jul 2000 20:52:23 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 7 Jul 2000 20:52:21 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "authority" In-Reply-To: <200007072146.RAA01755@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 7 Jul 2000, Robert S. Thau wrote: > > This seems to certify that the technological protection measure > > can >not< be used as part of the authorization process. > > Nu? If a cable operator downloads a key for a pay-per-view data > stream into a set-top box (which is 1201 access control if *anything* > is, and repeatedly cited in the legislative history as the sort of > thing that they mean to protect), that is certainly a technological > protection measure being used as part of an authorization process. I have to disagree here. I think that the customer is authorized when they sign the cable co. contract. *As a result* of that authorization, they are then given a key to decrypt the signal. Otherwise, we get into the theivery problems I pointed out to Chris. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5ZolWt+kM0Mq9M/wRAieRAKC2dwkaJ2FaJnojgm9miH5hf2kQdACglneY r2zPk15GtX9CfcEeROQPx/Y= =C2q5 -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 21:51:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17748 for dvd-discuss-outgoing; Fri, 7 Jul 2000 21:51:59 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA17745 for ; Fri, 7 Jul 2000 21:51:58 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA12513 for ; Fri, 7 Jul 2000 20:50:19 -0500 Message-ID: <39668913.C01AB581@mninter.net> Date: Fri, 07 Jul 2000 20:51:15 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" 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 I'm not sure what the fuss is all about. Can someone point to me where it days that authorization cannot consist of the confluence of disparate events and circumstances as defined by the authorizing body? Authorization is granted when you are given the key AND because you signed the agreement AND when you use an authorized device to utilize the authorized key. All three. Maybe more. Whatever the authorizing body wants. This is necessary to paint a complete picture of for satellite viewing, news websites, and every other type of authorization that happens today. The point being that authorization, because it happens under an exclusive (and exhausting) set of circumstances, should require the consent of the would-be-authorized-accessee because of the necessary limitations on authorization for a TPM to have any value. It also must be wide in the open so its legality can be challenged. When using a satellite dish or a members-only porn site, the limitations to authorization (and I should add *BENEFITS GAINED* in the transaction) are clearly stipulated. With DVD (and I would argue with typical realmedia) they are not. Perhaps the "first sale" that Bryan would like to see is the sale of the authorization key you participate in when you order the movie. However, it is obvious that this sale is not without its stipulations, which exist in your contract with the satellite provider. Those stipulations can be legal or illegal, but they exist. (I hate to bring up my comments to the copyright office, but they cover this. Illegally stipulated PPU arrangements should not be 1201 protected--but that's for another day.) Brian says: >"first sale + possession => access" >This is inline with the definition of access that is the "means, right, >or act of approaching, entry, or use". I'm no lawyer, but I still disagree. Neither of those first two, nor them taken together are a means, a right, or an act of approaching, entry or use. I'm starting to see how 'access,' as I've been using it, can be circular in (a)(3)(B). I claim that one uses a DVD player or DeCSS, which performs a function in order to gain access to a work. I used to call this 'accessing the work.' To use your words: >"Access" has to be something protected by "[the] process", it can't >simply be the undoing of the "process". I'm not sure you're exactly right, either, though. The process *is* the undoing of the TPM. Access(n) is the result of the process(v). Unfortunately, this leaves us no way to describe "the application of a process which results in access." Besides 'accessing,'(v) what else is there? 'Accessing,'(v) I contend, isn't 'access'(n) that the law has reserved for its exclusive use. "While I am accessing, I will have access!" Does someone have a suggestion for this frustration? Again, not a lawyer, just reading the law. Let me know if what I say doesn't jive. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 22:03:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17934 for dvd-discuss-outgoing; Fri, 7 Jul 2000 22:03:36 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17931 for ; Fri, 7 Jul 2000 22:03:35 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id VAA13221 for ; Fri, 7 Jul 2000 21:01:56 -0500 Message-ID: <39668BCB.626E8BD@mninter.net> Date: Fri, 07 Jul 2000 21:02:51 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention and authority 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 sam th wrote: > On Fri, 7 Jul 2000, Chris Moseng wrote: > > As you may guess, I disagree. The copyright owner can feel free to > > authorize however and whatever they see fit. 1201 provides no > > limitation (strictly speaking, unless we have our way) on what > > terms that contract may authorize access. It could be by access > > devices. It could be by> > uses. It could be by your hair color. > > It could be at random. > > > > This cannot be true. Access *must* be granted to people for it to > make any sense at all (not legally, but logically). It can be > granted to an intersection of a group of people, and some other test, > but the people are required. Otherwise, if you steal all the > required components, you would be authorized. Therefore, > although posession is 9/10 of the law, it cannot be 9/10 > of authorization. I certainly agree that people, ultimately, must be conferred or denied authorization, otherwise who would the plaintiffs take to court for circumvention? However, I do feel, and see with my own eyes in MPAA testimony, that a confluence of events can satisfy a copyright owner's requirements for authorization. As long as the events are rigidly defined, the copyright owner's authority can have meaning and effect. So a person, when subjected to or participating in the proper confluence of events, is granted or denied authorization. Too bad for them they never told anybody about it. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 22:07:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18024 for dvd-discuss-outgoing; Fri, 7 Jul 2000 22:07:58 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA18021 for ; Fri, 7 Jul 2000 22:07:57 -0400 Received: from 209-122-203-73.s327.tnt6.lnhva.md.dialup.rcn.com ([209.122.203.73] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 13Ak0o-0007dm-00; Fri, 7 Jul 2000 22:06:34 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu, Richard Hartman , "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Declaration of Michael Shamos Date: Fri, 7 Jul 2000 21:55:20 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <5A8391CA2D9ED311AFAA080009D982B10B1CB9@mail2.onetouch.com> MIME-Version: 1.0 Message-Id: <00070722051200.00699@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 07 Jul 2000, Richard Hartman wrote: > 4k below would be a very interesting question to ask... > > > -----Original Message----- > > From: Chris Moseng [mailto:moseng@mninter.net] > > Sent: Monday, July 03, 2000 11:42 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] Declaration of Michael Shamos [...deletia...] > > 4k. Can one create an operational DVD player that does not perform the > > functions that DeCSS performs? > > from DVDCCA post hearing comments (page 3) "Again, use of the CSS technology is in no way required to use the DVD format. It is entirely possible to manfacture [,] use and sell DVDs which do not employ the CSS technology. There is likewise no contractural of legal compulsion to use the CSS technology in DVD players (whether in hardware or software). No is there any restriction on development and use of a different encryption system for protection of content on DVD disks. One such system was, in fact, developed and deployed into the market." Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 22:19:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18077 for dvd-discuss-outgoing; Fri, 7 Jul 2000 22:19:02 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA18074 for ; Fri, 7 Jul 2000 22:19:01 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id VAA14321 for ; Fri, 7 Jul 2000 21:17:23 -0500 Message-ID: <39668F67.C1A32CC9@mninter.net> Date: Fri, 07 Jul 2000 21:18:15 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos References: <5A8391CA2D9ED311AFAA080009D982B10B1CB9@mail2.onetouch.com> <00070722051200.00699@yuggoth> 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Jeremy Erwin wrote: >DVDCCA post hearing comments[...] I anticipated that baloney, so among the questions I forwarded to the defense team to ask of Prof. Shamos, I included this: 7 Is it possible to create a DVD player that plays CSS-treated DVDs that does not descramble CSS? The key of course being to ask the questions in a way that fleshes out the true nature of the DVD market and its relation to CSS, not the one the DVDCCA makes up. Perhaps a good question to ask of someone would be How much value would a DVD player that does not descramble CSS have? Is there a market for non-CSS licensed DVD players? Of course this brings the realm of the trial way into economics. I'm not sure this is the time to make a full-fledged attack on CSS (unless, of course, we're forced to). - - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWaPODik9YADgV7kEQK8dACg9rsSLIc3KzZhPPMXWSzRR2/c7OgAoIxZ lpdOmyRXKvCAh0Uz4gvsNybW =uMLp -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 7 22:30:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18169 for dvd-discuss-outgoing; Fri, 7 Jul 2000 22:30:36 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA18166 for ; Fri, 7 Jul 2000 22:30:35 -0400 Received: from ppp.anonymizer.com (c4T2-196.015.popsite.net [216.126.187.196]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id TAA27252 for ; Fri, 7 Jul 2000 19:31:26 -0700 (PDT) Message-Id: <4.3.2.7.2.20000707191745.00b8b450@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 07 Jul 2000 19:28:39 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Appeal Prelim Injuction based on 1203(b)(1) to get time In-Reply-To: <20000707212046.10756.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 02:20 PM 7/7/2000 -0700, Bryan Taylor wrote: >Instead of appealing endlessly to the judge for more time that he >refuses to give, it seems like a better strategy would be to appeal the >preliminary injunction to the 2nd Circuit Court of Appeals and ask for >a halt to the proceedings below until there is a ruling. Time involved to do this even marginally adequately: lots. Chances of success, however many months after PI issued and only 7 days (from Monday) before trial: -0- A stay of lower court proceedings is not automatic in this case. A motion for stay pending appeal would have to be made first before Kaplan, then (if denied) to the appellate court. Such motions should be made as soon as is humanly possible. A stay on that basis at this late hour would, quite properly, be denied by both Kaplan and the 2C. Also, FYI, an appeal from the prelim would be based on the trial court record as it existed at the time the prelim was issued, not on after-developed evidence. If the evidence exists in the real world, but it isn't in the trial court record, it does not exist in the appellate court world. -------------------------------------------------------------------- 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 Jul 8 03:43:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA18585 for dvd-discuss-outgoing; Sat, 8 Jul 2000 03:43:54 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA18582 for ; Sat, 8 Jul 2000 03:43:53 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id AAA15901 for ; Sat, 8 Jul 2000 00:42:06 -0700 Date: Sat, 8 Jul 2000 00:42:06 -0700 (PDT) From: jeme@brelin.net X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <39668F67.C1A32CC9@mninter.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 7 Jul 2000, Chris Moseng wrote: > Jeremy Erwin wrote: > >DVDCCA post hearing comments[...] > > I anticipated that baloney, so among the questions I forwarded to the > defense team to ask of Prof. Shamos, I included this: > > 7 Is it possible to create a DVD player that plays CSS-treated DVDs > that does not descramble CSS? > > The key of course being to ask the questions in a way that fleshes > out the true nature of the DVD market and its relation to CSS, not > the one the DVDCCA makes up. We've found again and again that the Ps are fiddling with their terms... using already confusing acronyms and ideas against one another. (i.e., "nothing in the CSS license precludes a Linux player" [paraphrasing, sorry] where clearly this doesn't resolve the issue of a Free (as in freedom) player [and without regard to the ability to bypass CSS key license agreement issues via DVD-ROM drivers and output redirection].) > Perhaps a good question to ask of someone would be How much value > would a DVD player that does not descramble CSS have? Is there a > market for non-CSS licensed DVD players? Let's make a clear distinction between DVD and DVD Video. One is an open format standard and the other is a proprietary format with a little logo and everything. DVD Video is CSS scrambled MPEG video on a DVD disc. More correctly: How much value would a DVD Video palyer that does not descramble CSS have? Is there demand for a non-CSS licensed DVD player? (I don't like limiting things to markets just like I don't like the "commercially significant non-infringing use" test. Not everything is commerce. It's not all about money. Sometimes it's about doing what's right and enjoying high quality.) > Of course this brings the realm of the trial way into economics. I'm > not sure this is the time to make a full-fledged attack on CSS > (unless, of course, we're forced to). I think CSS SHOULD be questioned. It's an unnecessary layer that has no purpose other than player tying. DeCSS is a small step in creating a player-independent DVD Video model. Jeme. PS. I also agree that there is some implied authorization to access a DVD Video at first sale. There is no reason to believe this particular format is any different than a video cassette or audio CD. The method of transmission in this case is physical (I take the disc home) and I have paid for the disc in whole (and not just paid for media to pay later for license... it's a single transaction completed at the retailer). This is not an electronic transmission case and so circumventing for unauthorized access under this statue is inappropriate. (OK, not so sure about that last sentence, but everything before that is a firm belief at this moment.) -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 04:37:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA19554 for dvd-discuss-outgoing; Sat, 8 Jul 2000 04:37:39 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA19551 for ; Sat, 8 Jul 2000 04:37:37 -0400 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-6.00) id A7A15023003C; Sat, 08 Jul 2000 01:34:41 -0700 Message-ID: <3966E78C.EED60D47@eff.org> Date: Sat, 08 Jul 2000 01:34:20 -0700 From: Robin Gross Organization: Electronic Frontier Foundation X-Mailer: Mozilla 4.72 [en] (Win95; U) X-Accept-Language: en MIME-Version: 1.0 Subject: [dvd-discuss] BayFF Kicks Off with DVD Trial Rally 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 BayFF Kicks Off with DVD Trial Rally Pam Samuelson, and John Perry Barlow address Implications of EFF Litigation WHO: Electronic Frontier Foundation, Pam Samuelson, John Perry Barlow and music by Matt Nathanson WHAT: `BayFF' Meeting on EFF's DVD Litigation WHEN: Monday, July 10th, 2000 at 7:30PM WHERE: UC Berkeley Law School (Boalt Hall) rm 140 Directions are available on the EFF website: http://www.eff.org/pub/Intellectual_property/Video/bayff1_release.html This event is free of charge and open to the public. Donations will be accepted to aid EFF's legal defense team. In honor of its 10th Anniversary of defending civil liberties online, EFF presents a series of monthly meetings to address important issues where technology and policy collide. These meetings, entitled "BayFF" will kick off on July 10th, with two renowned speakers, EFF co-founder John Perry Barlow, and UC Berkeley Law Professor Pam Samuelson. Barlow and Samuelson will discuss the current litigation climate over intellectual property and raise public awareness about the important First Amendment implications of EFF's DeCSS defense efforts. EFF is coordinating the defense of the first trial to be brought under the controversial DMCA which begins on July 17th in New York. John Perry Barlow is a retired Wyoming cattle rancher, a former lyricist for the Grateful Dead, and co-founder of the Electronic Frontier Foundation. Since May of 1998, he has been a Fellow at Harvard Law School's Berkman Center for Internet and Society. He is a writer and lecturer on subjects relating to the virtualization of society and is a contributing editor of numerous publications, including Communications of the ACM. He has been a contributing writer for Wired since its first issue. His writings, which include his Declaration of Independence of Cyberspace as well as The Economy of Ideas, have been widely distributed on the Net. Pamela Samuelson is a Professor of Law and of Information Management at the University of California at Berkeley and a world-renowned expert on cyberlaw and intellectual property. She is also a Director of the Berkeley Center for Law & Technology and provided the endowment for the Samuelson Law, Technology and Public Policy Clinic at Boalt Hall. She has written and spoken extensively on the challenges that digital technologies pose for existing legal regimes, particularly intellectual property law, and more recently has become interested in legal regulation of digital networked environments. EFF is leading the defense in several legal attacks brought by the motion picture industry against website publishers who posted DeCSS software that allows people to watch their DVDs on their computers. **** You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the text: subscribe cafe-news The Electronic Frontier Foundation (http://www.eff.org) is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. Contact: Katina Bishop Electronic Frontier Foundation 415-436-9333 ex 101 Larry Trask Berkeley Center for Law and Technology 510-642-8073 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Robin D. Gross - Cyberspace Attorney @ Law Electronic Frontier Foundation 1550 Bryant Street, Suite 725, San Francisco, CA 94103 t: 415.436.9333 (x107) f: 415.436.9993 e: robin@eff.org w: http://www.eff.org RDG direct line: 415.863.5459 direct fax: 415.863.7154 EFF's Campaign for Audiovisual Free Expression: http://www.eff.org/cafe http://www.eff.org/pub/Intellectual_property/DVDCCA_case ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 11:53:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20541 for dvd-discuss-outgoing; Sat, 8 Jul 2000 11:53:44 -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 LAA20538 for ; Sat, 8 Jul 2000 11:53:42 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e68FqJs23916 for ; Sat, 8 Jul 2000 18:52:20 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 8 Jul 2000 18:52:19 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos In-Reply-To: <000501bfe6b3$75bb3200$87ce0593@ia.nsc.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 Jul 2000, John Zulauf wrote: [Snip on Shamos and a potential dirtload for descrambling] >> He could have had permission from the copyright holders, seeing as >> he was _working for them_. > >Yes but aren't the plaintiffs arguing that circumvention itself is a >violation of 1201 even if no copyright violation is involved? Thus Shamos >could be accused of engaging in criminal activity -- unless of course he >accedes to the opinion that DeCSS is not in fact "circumvention" but simple >interoperability or player independence. Even so, if the aim is to torpedo Shamos aren't there other ways besides a direct court challenge? You know, Bar Association kinda stuff... Ugly and demented, but some of the stuff going on in this thread is pretty bad as is... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 11:55:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20626 for dvd-discuss-outgoing; Sat, 8 Jul 2000 11:55:06 -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 LAA20623 for ; Sat, 8 Jul 2000 11:55:05 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e68Frg223939 for ; Sat, 8 Jul 2000 18:53:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 8 Jul 2000 18:53:42 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos declaration In-Reply-To: <20000705120404.B9454@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 Wed, 5 Jul 2000, Seth David Schoen wrote: >> This is what the deposition implies but does not say -- that Mr Shamos >> engaged in a reciprocal trade of works decoded via DeCSS. However, >> the "Matrix" copy he received could have originated from any number of >> sources -- a camcorder in a theatre, a video capture of a screener >> tape, a video capture of a VHS tape, a video capture of a DVD, or >> DeCSS. > >Or DoDsripper! I saw a #divx FAQ this morning which said that (in >ripping DVDs) one could use DeCSS or DoD's ripper -- the latter >preferred by the FAQ author. This would certainly help the D's but how about the injunction and the larger issue of RE and posting of code? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 12:03:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20775 for dvd-discuss-outgoing; Sat, 8 Jul 2000 12:03:14 -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 MAA20772 for ; Sat, 8 Jul 2000 12:03:13 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e68G1ob24257 for ; Sat, 8 Jul 2000 19:01:51 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 8 Jul 2000 19:01:50 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Is CSS itself "misuse of copyright"? In-Reply-To: <3963870B.A6D19F67@uic.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, 5 Jul 2000, John Schulien wrote: >I find this very interesting because I don't think that >the plaintiffs have even considered this. They are >extremely bold in asserting that they have the right >to deny fair use of their copyrighted materials by >technological means, and have as much as admitted >tying DVDs to licensed players. Hmm... And do we not have Jack Valenti more or less on record in this matter? In a videotaped deposition speaking in his official capacity of MPAA lead-man? Would that qualify as a conspiracy of sorts? Perhaps even the RICO kind? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 12:18:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20967 for dvd-discuss-outgoing; Sat, 8 Jul 2000 12:18:43 -0400 Received: from smtp10.atl.mindspring.net (smtp10.atl.mindspring.net [207.69.200.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20964 for ; Sat, 8 Jul 2000 12:18:42 -0400 Received: from jy01 (user-2iniinu.dialup.mindspring.com [165.121.74.254]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id MAA23458 for ; Sat, 8 Jul 2000 12:17:20 -0400 (EDT) Message-Id: <200007081617.MAA23458@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 08 Jul 2000 12:09:34 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief In-Reply-To: <39656E30.F2778A25@mit.edu> References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> <20000706220642.H9454@zork.net> Mime-Version: 1.0 Content-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 Andrew Brunner's Reply Brief of Appellant to the Court of Appeal of the State of California Sixth Appellant District: http://cryptome.org/dvd-v-ab-arb.htm Excerpt: "Under the legal regime proffered by DVD CCA, the proverbial cart is solidly placed before its horse. If the heavy evidentiary burden required by the First Amendment were not applied to the very question of whether there has been a misappropriation of trade secrets, then the constitutional protections could be cast aside by mere allegations. Perhaps in recognition of the weakness of its asserted position, DVD CCA attempts to characterize this appeal as being about theft and piracy. However, DVD CCA has never alleged or offered any evidence that Bunner stole or illegally copied or sold anything. And the preliminary injunction that is the subject of this appeal does not prohibit the copying or distribution of DVD movies. This appeal is not about theft or piracy. Rather, it is about the trial court’s failure to apply the evidentiary burden that the First Amendment requires, and its failure to perceive the constitutional harm that Bunner, and the general public, suffers because of the restriction on his fundamental rights. Bunner’s right to publish on his website information that he legally and innocently obtained is protected by the First Amendment and the even more rigorous precepts of the California Constitution. The trial court’s failure to employ the appropriate First Amendment tests evidences a manifest abuse of discretion. Moreover, it is clear that had the First Amendment guidelines been followed, the preliminary injunction could not have been granted." From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 12:42:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA21551 for dvd-discuss-outgoing; Sat, 8 Jul 2000 12:42:22 -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 MAA21548 for ; Sat, 8 Jul 2000 12:42:21 -0400 Received: from travel-net.com (trj61.travel-net.com [207.176.160.61]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id LAA26795 for ; Sat, 8 Jul 2000 11:38:35 -0400 Message-ID: <39675961.CD9EB523@travel-net.com> Date: Sat, 08 Jul 2000 12:40:01 -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] Is CSS itself "misuse of copyright"? 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 Ummmm civil RICO is pretty strict and not everything in our flights of imagination qualify. you really really need the two predicate acts mentioned in the statute. that, even if it counts (which Im not even sure qualifies) is only one at best. Sampo A Syreeni wrote: > > On Wed, 5 Jul 2000, John Schulien wrote: > > >I find this very interesting because I don't think that > >the plaintiffs have even considered this. They are > >extremely bold in asserting that they have the right > >to deny fair use of their copyrighted materials by > >technological means, and have as much as admitted > >tying DVDs to licensed players. > > Hmm... And do we not have Jack Valenti more or less > on record in this matter? In a videotaped deposition speaking in his > official capacity of MPAA lead-man? Would that qualify as a conspiracy of > sorts? Perhaps even the RICO kind? > > > Sampo Syreeni , aka decoy, student/math/Helsinki university -- 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 Sat Jul 8 13:00:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21732 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:00:14 -0400 Received: from ts0210.bates.edu (root@ts0209.bates.edu [134.181.72.139]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA21729 for ; Sat, 8 Jul 2000 13:00:11 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id NAA00942 for ; Sat, 8 Jul 2000 13:02:36 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sat, 8 Jul 2000 13:02:34 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <39668913.C01AB581@mninter.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 7 Jul 2000, Chris Moseng wrote: > I'm not sure what the fuss is all about. Can someone point to me where > it days that authorization cannot consist of the confluence of disparate > events and circumstances as defined by the authorizing body? > > Authorization is granted when you are given the key AND because you > signed the agreement AND when you use an authorized device to utilize > the authorized key. All three. Maybe more. Whatever the authorizing body > wants. The *only* possible point of authorization is at the purchase of the DVD disc. The other (logically possible) options are 1) At purchase of DVD player. Except the DVD player docs say this isn't true. 2) At conjunction of DVD player and DVD disc. This is illegal tying (this is what the MPAA wants). For a much longer discussion of this point, see my message at: sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5Z2y7t+kM0Mq9M/wRAgCIAJ4ma13Nsb0cqHO0MwJrNAdCosHxNQCfa+pU naZ356W2s/6L8e4H64xIF0k= =aebr -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 13:08:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21920 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:08:07 -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 NAA21917 for ; Sat, 8 Jul 2000 13:08:05 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e68H6h126806 for ; Sat, 8 Jul 2000 20:06:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sat, 8 Jul 2000 20:06:42 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 6 Jul 2000, sam th wrote: >tying arrangement lies in the seller's exploitation of its >control over the tying product to force the buyer into the purchase of a >tied product that the buyer either did not want at all, or >might have preferred to purchase elsewhere on different terms. But if the 'does not want' part becomes 'does not want because it does not let him break the law as easily', we're in trouble. It might, here, with 1201 in place. >By conditioning his sale of one commodity on [466 U.S. 2, 13] the >purchase of another, a seller coerces the abdication of buyers' >independent judgment as to the `tied' product's merits and insulates it >from the competitive stresses of the open market. But if the alternative products are by definition always burglars' tools? >But any intrinsic superiority of the `tied' product would convince freely >choosing buyers to select it over others anyway." We already see a statutory exception to your reasoning: 1201's limitations on VCR analog circuitry. >the law draws a distinction between the exploitation of market power by >merely enhancing the price of the tying product, on the one hand, and by >attempting to impose restraints on competition in the market for a tied >product, on the other. When the seller's power is just used to maximize >its return in the tying product market, where presumably its product >enjoys some justifiable advantage over its competitors, the competitive >ideal of the Sherman Act is not necessarily compromised. But if that power >is used to impair competition on the merits in another market, a >potentially inferior product may be insulated from competitive pressures. This is also exceedingly difficult to prove once you consider that CSS licences /can/ be bought on a relatively equal basis from the DVD CCA. It's just that the law does not recognize any open source exceptions to licencing conditions. There's plenty of competition in the commercial DVD player front... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 13:16:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22005 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:16:50 -0400 Received: from dial131.roadrunner.com (dial131.cybermesa.com [209.12.75.131] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22002 for ; Sat, 8 Jul 2000 13:16:43 -0400 Received: (from paul@localhost) by dial131.roadrunner.com (8.8.7/8.8.7) id LAA00772 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 11:15:57 -0600 Date: Sat, 8 Jul 2000 11:15:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000708111556.A553@localhost> References: <39668913.C01AB581@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39668913.C01AB581@mninter.net>; from moseng@mninter.net on Fri, Jul 07, 2000 at 08:51:15PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 08:51:15PM -0500, Chris Moseng wrote: > I'm not sure what the fuss is all about. Can someone point to me where > it days that authorization cannot consist of the confluence of disparate > events and circumstances as defined by the authorizing body? > > Authorization is granted when you are given the key AND because you > signed the agreement AND when you use an authorized device to utilize > the authorized key. All three. Maybe more. Whatever the authorizing body > wants. In principle yes. But in the case of CSS, no. Make two scenarios, one with a stolen DVD, one with a purchased DVD. Play them both in the *same* DVD player. The DVD player does its thing regardless of the theft-status of a disk. The player *can't* be conveying authorization, regardless of what "access" means. > This is necessary to paint a complete picture of for satellite viewing, > news websites, and every other type of authorization that happens today. I think satellite viewing services probably do not have a broken-beyond-repair authorization mechanism. > The point being that authorization, because it happens under an > exclusive (and exhausting) set of circumstances, should require the > consent of the would-be-authorized-accessee because of the necessary > limitations on authorization for a TPM to have any value. It also must > be wide in the open so its legality can be challenged. > > When using a satellite dish or a members-only porn site, the limitations > to authorization (and I should add *BENEFITS GAINED* in the transaction) > are clearly stipulated. With DVD (and I would argue with typical > realmedia) they are not. > > Perhaps the "first sale" that Bryan would like to see is the sale of the > authorization key you participate in when you order the movie. However, > it is obvious that this sale is not without its stipulations, which > exist in your contract with the satellite provider. Those stipulations > can be legal or illegal, but they exist. (I hate to bring up my comments > to the copyright office, but they cover this. Illegally stipulated PPU > arrangements should not be 1201 protected--but that's for another day.) What does the acronym "PPU" mean? > Brian says: > >"first sale + possession => access" > >This is inline with the definition of access that is the "means, right, > >or act of approaching, entry, or use". > > I'm no lawyer, but I still disagree. Neither of those first two, nor > them taken together are a means, a right, or an act of approaching, > entry or use. > > I'm starting to see how 'access,' as I've been using it, can be circular > in (a)(3)(B). I claim that one uses a DVD player or DeCSS, which > performs a function in order to gain access to a work. I used to call > this 'accessing the work.' I'd phrase this as, no matter what the definition of "access", (a)(3)(B) is circular. > To use your words: These are my (Paul Fenimore's) words, not Bryan Taylor's: > >"Access" has to be something protected by "[the] process", it can't > >simply be the undoing of the "process". > > I'm not sure you're exactly right, either, though. The process *is* the > undoing of the TPM. Access(n) is the result of the process(v). > Unfortunately, this leaves us no way to describe "the application of a > process which results in access." Besides 'accessing,'(v) what else is > there? 'Accessing,'(v) I contend, isn't 'access'(n) that the law has > reserved for its exclusive use. "While I am accessing, I will have > access!" Does someone have a suggestion for this frustration? > > Again, not a lawyer, just reading the law. Let me know if what I say > doesn't jive. I think your last point jives. Let me take a detour and fill in all the blanks in the substitution. If DVD players "gain access to the work" each time the "play" button is pushed, then one "gains access to the work" occurs each and every time one "descrambl[es] the work". This says there is no difference between "gain access" and "descrambling of the work". As you note, "requires ... application of ... a process or a treatment" is also one and the same with "requires ... descrambling of the work". "requires the application of information" arguably fails because the key is not needed to descramble the work, so I'll leave that one alone. So, take: (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. and substitutes phrases: (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 descrambling of the work, with the authority of the copyright owner, to descramble the work. The only thing that saying "pushing the play button" is "access" get us is reading the difference between "process or ... treatment" and "access" out of existence. The reading of access as something that happens every time one uses the work (to use Bryan's words), looks to my relatively inexperienced eye for these matters as if it fails on fundamental statutory grounds. The Homer Simpson "doh" conclusion is that "access" is something other than the "process". The committee report is very concerned with commerce issues, so it is entirely in keeping with the Congressional Record that access is the commercial-access to the work. That happens when the copyright owner receives the reward that is their incentive under copyright. It happens once, not many times. Once vs. many is solid ground to distinguish this "access" from the "process". Furthermore, the word "commercial" appears in (a)(2) as a test of whether a device is a circumventing device. I don't think 1201(a) is making a pretense to regulate actions, or devices that facilitate actions, after the copyright owner's commercial interests is finished! If this reading is correct, this raises the possibility of a(nother) flaw in the statute. (a)(2)(B) doesn't list significant noncommercial purpose (i.e. private viewing, a non-copyright use) as an exempting factor. My recollection is that this point has been raised once before, some time ago. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 13:19:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22058 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:19:15 -0400 Received: from dial131.roadrunner.com (dial131.cybermesa.com [209.12.75.131] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22055 for ; Sat, 8 Jul 2000 13:19:13 -0400 Received: (from paul@localhost) by dial131.roadrunner.com (8.8.7/8.8.7) id LAA00780 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 11:18:33 -0600 Date: Sat, 8 Jul 2000 11:18:32 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000708111832.B553@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB9@mail2.onetouch.com> <00070722051200.00699@yuggoth> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00070722051200.00699@yuggoth>; from jeremy@gmu.edu on Fri, Jul 07, 2000 at 09:55:20PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 09:55:20PM -0400, Jeremy Erwin wrote: > On Fri, 07 Jul 2000, Richard Hartman wrote: > > 4k below would be a very interesting question to ask... > > > > > -----Original Message----- > > > From: Chris Moseng [mailto:moseng@mninter.net] > > > Sent: Monday, July 03, 2000 11:42 AM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: Re: [dvd-discuss] Declaration of Michael Shamos > [...deletia...] > > > 4k. Can one create an operational DVD player that does not perform the > > > functions that DeCSS performs? > > > > > from href="http://www.loc.gov/copyright/1201/post-hearing/turnbull.pdf">DVDCCA post > hearing comments > (page 3) "Again, use of the CSS technology is in no way > required to use the DVD format. It is entirely possible to manfacture [,] use > and sell DVDs which do not employ the CSS technology. There is likewise no > contractural of legal compulsion to use the CSS technology in DVD players > (whether in hardware or software). No is there any restriction on development > and use of a different encryption system for protection of content on DVD > disks. One such system was, in fact, developed and deployed into the market." Too bad for Mr. Turnbull that 1201(a)(1) is concerned with access to copyrighted works, however protected, rather than the right or ability, per se, to build players and decoder. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 13:24:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22176 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:24:55 -0400 Received: from dial131.roadrunner.com (dial131.cybermesa.com [209.12.75.131] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22173 for ; Sat, 8 Jul 2000 13:24:53 -0400 Received: (from paul@localhost) by dial131.roadrunner.com (8.8.7/8.8.7) id LAA00788 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 11:24:13 -0600 Date: Sat, 8 Jul 2000 11:24:13 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Circumvention and authority Message-ID: <20000708112412.C553@localhost> References: <39668BCB.626E8BD@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39668BCB.626E8BD@mninter.net>; from moseng@mninter.net on Fri, Jul 07, 2000 at 09:02:51PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 07, 2000 at 09:02:51PM -0500, Chris Moseng wrote: > sam th wrote: > > On Fri, 7 Jul 2000, Chris Moseng wrote: > > > > As you may guess, I disagree. The copyright owner can feel free to > > > authorize however and whatever they see fit. 1201 provides no > > > limitation (strictly speaking, unless we have our way) on what > > > terms that contract may authorize access. It could be by access > > > devices. It could be by> > uses. It could be by your hair color. > > > It could be at random. > > > > > > > This cannot be true. Access *must* be granted to people for it to > > make any sense at all (not legally, but logically). It can be > > granted to an intersection of a group of people, and some other test, > > but the people are required. Otherwise, if you steal all the > > required components, you would be authorized. Therefore, > > although posession is 9/10 of the law, it cannot be 9/10 > > of authorization. > > I certainly agree that people, ultimately, must be conferred or denied > authorization, otherwise who would the plaintiffs take to court for > circumvention? > > However, I do feel, and see with my own eyes in MPAA testimony, that a > confluence of events can satisfy a copyright owner's requirements for > authorization. As long as the events are rigidly defined, the copyright > owner's authority can have meaning and effect. So a person, when > subjected to or participating in the proper confluence of events, is > granted or denied authorization. Saying that the player conveys authority or is part of the conveyance has neither meaning nor effect (at least not past the filing of a lawsuit, either on their part, or for anti-trust violations). The player or decoder using the CSS algorithm and proceedures cannot possibly tell the difference between stolen and purchased DVDs. Are we to believe that the copyright owner has authorized viewing stolen DVDs by way of a player that can't distinguish? Furhtermore, the player EULA explicitly disclaims the conveyance of *any* interest in the copyright works that it plays. > Too bad for them they never told anybody about it. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 13:55:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22509 for dvd-discuss-outgoing; Sat, 8 Jul 2000 13:55:14 -0400 Received: from dial221.roadrunner.com (sf-du221.cybermesa.com [209.12.75.221]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22506 for ; Sat, 8 Jul 2000 13:55:11 -0400 Received: (from paul@localhost) by dial221.roadrunner.com (8.8.7/8.8.7) id LAA00995 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 11:54:32 -0600 Date: Sat, 8 Jul 2000 11:54:31 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens Message-ID: <20000708115430.D553@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Sat, Jul 08, 2000 at 08:06:42PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 08, 2000 at 08:06:42PM +0300, Sampo A Syreeni wrote: > On Thu, 6 Jul 2000, sam th wrote: > > >tying arrangement lies in the seller's exploitation of its > >control over the tying product to force the buyer into the purchase of a > >tied product that the buyer either did not want at all, or > >might have preferred to purchase elsewhere on different terms. > > But if the 'does not want' part becomes 'does not want because it does not > let him break the law as easily', we're in trouble. It might, here, with > 1201 in place. The P's are really ramming an entire planet-load of lies through on this one. 1201(a) is about access control circumvention, and trafficking, not infringement! The things you are talking about are not part of establishing a violation of 1201(a). They are only relevant to establishing that the P's have been harmed. Kaplan is *dead wrong* when he says that access control is a "prophylactic". He's implying that it is prophylactic to copyright infringement. The judge isn't even keeping his ducks in a line. No matter what the technical details of any "process" utilizing cryptography that "controls access", copyright infringement can either occur before *or* after the act of descrambling without authorization == circumvention. By causality, access control isn't "prophylactic", it is irrelevant to copyright infringement. It *is* relevant to insuring that copyright owners distributing their works electronically receive payment of the incentive that is their end of the U.S. copyright bargain. Because 1201(a) isn't "prophylactic", the analogy with buglary tools is broken for CSS. CSS doesn't protect "access" because DVDs are made of atoms, not photons. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 15:54:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22914 for dvd-discuss-outgoing; Sat, 8 Jul 2000 15:54:32 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22911 for ; Sat, 8 Jul 2000 15:54:31 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sat, 8 Jul 2000 15:57:32 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E18@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Have the Plaintiffs deposed anyone? Date: Sat, 8 Jul 2000 15:57:29 -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 Have the plaintiffs deposed anyone, and is a transcript available? From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 16:33:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23518 for dvd-discuss-outgoing; Sat, 8 Jul 2000 16:33:20 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23514 for ; Sat, 8 Jul 2000 16:33:18 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13B1GW-0002RA-00; Sat, 08 Jul 2000 13:31:56 -0700 Date: Sat, 8 Jul 2000 13:31:56 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief Message-ID: <20000708133156.Q9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> <20000706220642.H9454@zork.net> <39656E30.F2778A25@mit.edu> <200007081617.MAA23458@smtp10.atl.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007081617.MAA23458@smtp10.atl.mindspring.net>; from jya@pipeline.com on Sat, Jul 08, 2000 at 12:09:34PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young writes: > We offer Andrew Brunner's Reply Brief of Appellant to the Court > of Appeal of the State of California Sixth Appellant District: > > http://cryptome.org/dvd-v-ab-arb.htm It's quite nice. Thus, this injunction prevents DeCSS from being set to music and recorded [...] Hmmmm, I have a mind to commission someone to write a "CSS Song" whose lyrics include an English description of the CSS descrambling procedure (probably as second-person imperatives, or maybe a ballad in the third person about a hero and his loops, exclusive-ors, arrays, and increments). I'd just need to find a librettist who can make CSS rhyme and set it to meter. -- 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 Jul 8 16:43:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23662 for dvd-discuss-outgoing; Sat, 8 Jul 2000 16:43:31 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23659 for ; Sat, 8 Jul 2000 16:43:30 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id PAA04105 for ; Sat, 8 Jul 2000 15:41:50 -0500 Message-Id: <200007082041.PAA04105@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief Date: Sat, 8 Jul 100 20:41:50 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen opined: > I'd just need to find a librettist who can make CSS > rhyme and set it to meter. Well I can think of one rhyme right off the bat, with poetic value no less. "BSes" Think that's enough to justify an advance on the rest? I guarantee it'll all be at least that insightful, and easy to dance to. Chris From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 16:58:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23778 for dvd-discuss-outgoing; Sat, 8 Jul 2000 16:58:44 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23775 for ; Sat, 8 Jul 2000 16:58:43 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13B1f7-0002XS-00; Sat, 08 Jul 2000 13:57:21 -0700 Date: Sat, 8 Jul 2000 13:57:21 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief Message-ID: <20000708135721.S9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200007082041.PAA04105@mail.swdata.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007082041.PAA04105@mail.swdata.com>; from moseng@mninter.net on Sat, Jul 08, 2000 at 08:41:50PM +0000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Seth David Schoen opined: > > > I'd just need to find a librettist who can make CSS > > rhyme and set it to meter. > > Well I can think of one rhyme right off the bat, with poetic value no less. > > "BSes" > > Think that's enough to justify an advance on the rest? I guarantee it'll all be > at least that insightful, and easy to dance to. Oh, I want the description of the details of the algorithm to rhyme, not the name of the algorithm. (I wonder if the engineers who invented CSS are reading this and thinking that it's totally bizarre that anyone ever ended up caring this much about their little program.) -- 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 Jul 8 17:01:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23891 for dvd-discuss-outgoing; Sat, 8 Jul 2000 17:01:56 -0400 Received: from fort-point-station.mit.edu (FORT-POINT-STATION.MIT.EDU [18.72.0.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23888 for ; Sat, 8 Jul 2000 17:01:55 -0400 Received: from grand-central-station.MIT.EDU (GRAND-CENTRAL-STATION.MIT.EDU [18.69.0.34]) by fort-point-station.mit.edu (8.9.2/8.9.2) with ESMTP id RAA11642 for ; Sat, 8 Jul 2000 17:00:35 -0400 (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 RAA20936 for ; Sat, 8 Jul 2000 17:00:35 -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 RAA08938 for ; Sat, 8 Jul 2000 17:00:34 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id RAA27947; Sat, 8 Jul 2000 17:00:34 -0400 (EDT) Date: Sat, 8 Jul 2000 17:00:34 -0400 (EDT) Message-Id: <200007082100.RAA27947@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief In-Reply-To: <20000708133156.Q9454@zork.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Seth David Schoen > Hmmmm, I have a mind to commission someone to write a "CSS Song" whose > lyrics include an English description of the CSS descrambling ... > I'd just need to find a librettist who can make CSS rhyme and set it to meter This is a job for Tom Lehrer, whose lesser-known works include "The Derivative Song" and "There's A Delta For Every Epsilon" (better known work is setting the periodic table to music). If he's not interested, the filk-singer Leslie Fish might be able to do it, or maybe the people who did "Schoolhouse Rock". I'd toss in some bucks for this project too. ------------------------------------------------------------------------ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com ------------------------------------------------------------------------ AMM, 81 (1974) 490: THE DERIVATIVE SONG Words by Tom Lehrer -- Tune: "There'll be Some Changes Made" You take a function of x and you call it y, Take any x-nought that you care to try, You make a little change and call it delta x, The corresponding change in y is what you find nex', And then you take the quotient and now carefully Send delta x to zero, and I think you'll see That what the limit gives us, if our work all checks, Is what we call dy/dx, It's just dy/dx. -------------------------------- AMM, 81 (1974) 612: THERE'S A DELTA FOR EVERY EPSILON (Calypso) Words and Music by Tom Lehrer There's a delta for every epsilon, It's a fact that you can always count upon. There's a delta for every epsilon And now and again, There's also an N. But one condition I must give: The epsilon must be positive A lonely life all the others live, In no theorem A delta for them. How sad, how cruel, how tragic, How pitiful, and other adjec- Tives that I might mention. The matter merits our attention. If an epsilon is a hero, Just because it is greater than zero, It must be mighty discouragin' To lie to the left of the origin. This rank discrimination is not for us, We must fight for an enlightened calculus, Where epsilons all, both minus and plus, Have deltas To call their own. -------------------------------- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 18:22:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24029 for dvd-discuss-outgoing; Sat, 8 Jul 2000 18:22:06 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24026 for ; Sat, 8 Jul 2000 18:22:05 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13B2xo-0002f8-00; Sat, 08 Jul 2000 15:20:44 -0700 Date: Sat, 8 Jul 2000 15:20:44 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000708152044.T9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> <20000706170208.A2227@localhost> <39655DE2.9DA8DAEC@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <39655DE2.9DA8DAEC@mninter.net>; from moseng@mninter.net on Thu, Jul 06, 2000 at 11:34:42PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > The use is authorized exclusively when: > -The use is permitted by the authorized accessing mechanism[1], and > -The use does not (maybe CANNOT) violate copyright[2]. There are uses of licensed players to violate copyright. For example, you can buy a machine running Windows, with a DVD-ROM drive, and a high-resolution projector with SVGA input ($500 to several thousand dollars). You'll also want a stereo system. Now go rent a DVD, ignore the "home viewing only" bit (because the player doesn't check), and project it onto the wall, with sound output through the stereo. The quality will be quite good, if the resolution of your projector is high enough. It will definitely be nicer than NTSC with the monaural chanenl you'd get from a VHS. You can charge people admission, and make a bunch of money, and be in violation of 17 USC 106. Or you can just invite the public for free, and still be breaking the law. This isn't a contrived example. I remember a fraternity or sorority which held recruiting events at which they would project movies from VHS onto the wall of their house (and invite the student public). I have no idea whether they rented the movies at a local video place or whether they actually signed a public performance license. This isn't inconsistent with what you said, because that use is unauthorized. But it's another case of licensed players having absolutely no idea whether or not the uses made of them are authorized. (If you _do_ sign a public performance license, that use could be authorized again, perhaps.) -- 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 Jul 8 19:47:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24275 for dvd-discuss-outgoing; Sat, 8 Jul 2000 19:47:31 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24272 for ; Sat, 8 Jul 2000 19:47:30 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id SAA14504 for ; Sat, 8 Jul 2000 18:45:54 -0500 Message-Id: <200007082345.SAA14504@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief Date: Sat, 8 Jul 100 23:45:54 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Believe me, I am well on my way to penning a lyrical analysis of the CSS specification and its implementation, that rhyme was just a dope sample to lubricate the financial machine. Here's another: "CSS, schmeeSS." I need the advance for reasons too numerous and debauched to mention--you certainly are not against me making my fair share for this copyrighted work! I'm not about to release this art in digital form on the internet without compensation! What, do you expect me to believe you will *honor my copyright? Just like that? What, out of the kindness of your heart?! Not likely. After I recieve my advance, I will be happy to complete the work and sell copies to interested parties. Of course, it will be enclosed in a technological protecion measure. After several million copies have been sold, I will reveal the requirements for purchasers to actually gain authorization to access the work behind the TPM. If you're game, and supply the advance, we can share in the rights and the riches that are sure to follow. Ah, consumers are such RUBES! All in the spirit of CSS, you see. Just more evidence that I'm an artist--this is an allegory. I think. > Oh, I want the description of the details of the algorithm to rhyme, > not the name of the algorithm. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 19:59:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24379 for dvd-discuss-outgoing; Sat, 8 Jul 2000 19:59:24 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24376 for ; Sat, 8 Jul 2000 19:59:23 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13B4Ty-0002nF-00; Sat, 08 Jul 2000 16:58:02 -0700 Date: Sat, 8 Jul 2000 16:58:02 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos declaration Message-ID: <20000708165802.W9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000705120404.B9454@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Sat, Jul 08, 2000 at 06:53:42PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni writes: > On Wed, 5 Jul 2000, Seth David Schoen wrote: > > >> This is what the deposition implies but does not say -- that Mr Shamos > >> engaged in a reciprocal trade of works decoded via DeCSS. However, > >> the "Matrix" copy he received could have originated from any number of > >> sources -- a camcorder in a theatre, a video capture of a screener > >> tape, a video capture of a VHS tape, a video capture of a DVD, or > >> DeCSS. > > > >Or DoDsripper! I saw a #divx FAQ this morning which said that (in > >ripping DVDs) one could use DeCSS or DoD's ripper -- the latter > >preferred by the FAQ author. > > This would certainly help the D's but how about the injunction and the > larger issue of RE and posting of code? Right, I wouldn't want to say that DoD has no free speech right to post their ripper program. -- 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 Jul 8 20:09:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24480 for dvd-discuss-outgoing; Sat, 8 Jul 2000 20:09:23 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA24477 for ; Sat, 8 Jul 2000 20:09:22 -0400 Received: from ppp.anonymizer.com (c06-081.015.popsite.net [64.24.77.81]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA28812 for ; Sat, 8 Jul 2000 17:10:15 -0700 (PDT) Message-Id: <4.3.2.7.2.20000708170823.00a9fa70@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 08 Jul 2000 17:09:11 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] DVD v. Brunner, Appellant's Reply Brief In-Reply-To: <200007082345.SAA14504@mail.swdata.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 11:45 PM 7/8/2000 +0000, Chris Moseng wrote: >All in the spirit of CSS, you see. Just more evidence that I'm an >artist--this >is an allegory. I think. Struck me as being more of an allergy. -------------------------------------------------------------------- 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 Jul 8 20:57:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24590 for dvd-discuss-outgoing; Sat, 8 Jul 2000 20:57:27 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA24587 for ; Sat, 8 Jul 2000 20:57:26 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id TAA18273 for ; Sat, 8 Jul 2000 19:55:49 -0500 Message-ID: <3967CF29.BD2BF0C0@mninter.net> Date: Sat, 08 Jul 2000 20:02:33 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <39668913.C01AB581@mninter.net> <20000708111556.A553@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > These are my (Paul Fenimore's) words, not Bryan Taylor's: Sorry, Paul, I knew that was you, I deleted the part where I changed my focus to you in revisions. Oops. > What does the acronym "PPU" mean? Pay-Per-Use. > The only thing that saying "pushing the play button" is "access" get > us is reading the difference between "process or ... treatment" and > "access" out of existence. You may well be right. You've nearly convinced this addled brain. Maybe when the temperature here drops below 90 I'll be better able to rebut. On the other hand, you may still be committing the same violation I can't quite pinpoint, but by using the substitution you equated two things that are not equal. Personally, I would sooner accept a reading of a law that avoids vagueness than one that necessitates it if both make sense, says the un-lawyer. I'm not sure that legal lingo is transitive. Not willing to read the legislative history of the bill just now, I'll just go to a movie theatre and cool off. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 21:17:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24704 for dvd-discuss-outgoing; Sat, 8 Jul 2000 21:17:55 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA24701 for ; Sat, 8 Jul 2000 21:17:54 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA19440 for ; Sat, 8 Jul 2000 20:16:18 -0500 Message-ID: <3967D3F6.FA345D8B@mninter.net> Date: Sat, 08 Jul 2000 20:23:02 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <396410AC.36BFD5C6@mninter.net> <20000706103252.A596@localhost> <3964C794.58ACC564@mninter.net> <3964DBF7.F792D388@mninter.net> <3964F7A5.365A9F9B@mit.edu> <3964FFA8.BBD9B6C8@mninter.net> <20000706160705.A1897@localhost> <39650766.8884FAD8@mninter.net> <20000706170208.A2227@localhost> <39655DE2.9DA8DAEC@mninter.net> <20000708152044.T9454@zork.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 In reply to Seth and sam, Sam: > The *only* possible point of authorization is at the purchase of > the DVD disc. - - - ---------------------------------------------------------------------- Seth: > This isn't inconsistent with what you said, because that use is > unauthorized. But it's another case of licensed players having > absolutely no idea whether or not the uses made of them are > authorized. I agree with both of you. I can't stress enough, though, that our speculations mean nothing at all. This is why I didn't want to post my map of their authority model-it is meaningless objectively, helpful only, perhaps, to plan a defense against an unknowable enemy. It is rather like a reverse-engineered understanding of how the plaintiffs view their own authority. I constructed it by observing the outputs resulting from various inputs. Ultimately, the movie studios define authorization, and we are subject to it; concretely in the form of civil lawsuits, backed by 1201, over circumvention. We are well prepared to rebut any non-sensical claim to authority. To be surprised by an unexpected authority model that supports their 1201 claim but doesn't fail our other tests, I think, is nearing impossible. Therefore, let them tell us what model we are subject to, then we can tell them exactly why not. Until they do, there can be no circumvention and no basis for a lawsuit. - - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWfT4Tik9YADgV7kEQIJoQCeNMSROTcO4z0eCUvpHeTJKFkFL30AoL5i agpasYOet10ZK2ESe4JNcGbL =ZXv2 -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 21:29:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24815 for dvd-discuss-outgoing; Sat, 8 Jul 2000 21:29:16 -0400 Received: from ts0210.bates.edu (root@ts0203.bates.edu [134.181.72.133]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA24812 for ; Sat, 8 Jul 2000 21:29:13 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id VAA00692 for ; Sat, 8 Jul 2000 21:31:41 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sat, 8 Jul 2000 21:31:40 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" In-Reply-To: <20000708152044.T9454@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Sat, 8 Jul 2000, Seth David Schoen wrote: > This isn't a contrived example. I remember a fraternity or sorority > which held recruiting events at which they would project movies from > VHS onto the wall of their house (and invite the student public). I > have no idea whether they rented the movies at a local video place > or whether they actually signed a public performance license. I also remember, at summer camp (CTY) them showing movies in large theatres, where everyone laughed at the FBI warning at the beginning, prohibiting group showing. People break this law *all the time*. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5Z+QNt+kM0Mq9M/wRAiWZAKC58abEwG8Qo9rPRXJU8WJAsvq5iwCgmeL7 AeefBkOTNHbXxi/IvhVz5nM= =gn6F -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 22:18:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25049 for dvd-discuss-outgoing; Sat, 8 Jul 2000 22:18:06 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25046 for ; Sat, 8 Jul 2000 22:18:05 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA21235 for ; Sat, 8 Jul 2000 19:16:39 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA22477; Sat, 8 Jul 2000 19:15:20 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] here is an idea for a defense Date: 8 Jul 2000 19:14:11 -0700 Organization: A poorly-installed InterNetNews site Lines: 15 Distribution: isaac Message-ID: <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One important difference between `implementing CSS' and `circumventing CSS' comes in when you consider whether you've got the authority of the copyright holder. If "DVD players bought at Circuit City" were ruled to be implementing CSS with the authority of the copyright holder, but DeCSS was ruled to be implementing CSS without the authority of the copyright holder, there might be an argument that DeCSS is circumventing CSS. Of course, I see no reason to believe that DVD players bought at Circuit City have authority from the copyright holder any more than DeCSS does, but that seems to be one of the distinctions the law requires. Please note that I am using the word `circumvention' in the legal 1201(a)-sense, not in the technical sense of the word. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 22:27:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25178 for dvd-discuss-outgoing; Sat, 8 Jul 2000 22:27:40 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25175 for ; Sat, 8 Jul 2000 22:27:39 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA21261 for ; Sat, 8 Jul 2000 19:26:14 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA22512; Sat, 8 Jul 2000 19:24:55 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Attacking authority [again] Date: 8 Jul 2000 19:24:45 -0700 Organization: A poorly-installed InterNetNews site Lines: 22 Distribution: isaac Message-ID: <8k8npd$lvf$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <20000706150044.A1548@localhost> <39650D38.C922F2A7@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <39650D38.C922F2A7@mit.edu>, Ravi Nanavati wrote: > We can use the revocation of the Xing player key to attack their > authority model. [...] > > If someone uses the old Xing player (with the revoked key) to play a DVD > has that person committed an act of circumvention? This doesn't seem conclusive to me. One might argue that authority is conveyed by including the key in the player; but that authority is not revoked by revoking the key. I don't see any incompatibility here. Anyway, their `authority model' is nonsensical. _Everyone_ gets a key. If everyone has a key, and having a key indicates authority, then everyone has authority, bingo! If having a key doesn't indicate authority, then just why are so-called "legitimate" DVD players legal? A second piece of evidence comes from the legalese accompanying the Xing player, which specifically states -- if I remember correctly -- that the Xing player does not itself give authority to play DVD's. I think this was discussed some time ago on this list; a search of the archives might reveal the exact text. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 22:47:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25340 for dvd-discuss-outgoing; Sat, 8 Jul 2000 22:47:52 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25337 for ; Sat, 8 Jul 2000 22:47:51 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA21331 for ; Sat, 8 Jul 2000 19:46:25 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA22565; Sat, 8 Jul 2000 19:45:07 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Streambox case Date: 8 Jul 2000 19:44:47 -0700 Organization: A poorly-installed InterNetNews site Lines: 25 Distribution: isaac Message-ID: <8k8ouv$m14$1@blowfish.isaac.cs.berkeley.edu> References: <20000707165857.5164.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000707165857.5164.qmail@web512.mail.yahoo.com>, Bryan Taylor wrote: > I'm sorry you think the copy-bit is an "obnoxious restriction". It is > really nothing more that an explicit statement of authorization status > to copy the author's copyrighted work. Bummer if you think of 17 USC > 106 as an obnoxious restriction. You have no right to be able to copy > this work unless the bit is set to "ok to copy". Uhh, you seem to think that copyright owners are allowed to designate any use they like as infringing uses. I'm at a loss to see why this should be so, under a classical copyright regime (no DMCA). Consider time-shifting. Space-shifting. Fair use excerpts. And so on. If I understand correctly, the law does not allow copyright holders to simply declare those uses as forbidden without authorization. Those uses are legally protected. If copyright holders don't like it, too bad. So how again is this a straightforward 17 USC 106 issue? Why is it so wrong to call "copy bits" obnoxious? Why do you say I never have any right to copy the work unless the bit is set to "ok to copy"? I still say 17 USC 106 is not obnoxious, but "copy bits" are. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 23:01:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25506 for dvd-discuss-outgoing; Sat, 8 Jul 2000 23:01:20 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25503 for ; Sat, 8 Jul 2000 23:01:19 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA21349 for ; Sat, 8 Jul 2000 19:59:54 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA22593; Sat, 8 Jul 2000 19:58:35 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] LOC post-hearing comments are available Date: 8 Jul 2000 19:58:25 -0700 Organization: A poorly-installed InterNetNews site Lines: 28 Distribution: isaac Message-ID: <8k8poh$m20$1@blowfish.isaac.cs.berkeley.edu> References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <396557E0.FE21CB41@mit.edu>, Ravi Nanavati wrote: > "First, keys necessary for the authorized playback of the > encrypted content are stored in an area of the DVD disc > which is not normally accessible or copyable when a > recording of a disc is made. Accordingly, if a user were to > make a bit for bit copy of a CSS encrypted disc, the copy > would be encrypted and the device on which playback is > attempted would not be able to access the keys needed to > decrypt the content. Moreover, even if the content were > somehow copied in decrypted form, an authorized player > would be unable to access the keys necessary to play > back the unauthorized copy of the disc." I don't know who wrote this, but it is simply wrong. It's unfortunate when people get the technical facts wrong, and then base their analysis on false premises. Maybe what the author was trying to say is that 1. You can't make bit-for-bit copies onto consumer-grade writeable discs; but 2. Pirates _can_ make a bit-for-bit copy by pressing a DVD the same way manufacturers do, and when you make a bit-for-bit copy, the result is just as good as the original. Making bit-for-bit copies does not require decrypting in any way. So, there's not much risk that the average man on the street will be churning out bit-for-bit copies in his basement, but there is a very high risk that copyright pirates will exploit bit-for-bit copying to sell pirated DVD's. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 23:13:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26325 for dvd-discuss-outgoing; Sat, 8 Jul 2000 23:13:01 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA26322 for ; Sat, 8 Jul 2000 23:12:59 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id UAA21374 for ; Sat, 8 Jul 2000 20:11:34 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA22626; Sat, 8 Jul 2000 20:10:15 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "authority" Date: 8 Jul 2000 20:09:06 -0700 Organization: A poorly-installed InterNetNews site Lines: 16 Distribution: isaac Message-ID: <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000707182256.9303.qmail@web509.mail.yahoo.com>, Bryan Taylor wrote: > I contest this. DeCSS provides "use", not access. Access is provided by > the contract of sale that constitutes first sale combined with physical > possession of the media. You have to have access to a copy (fixed in a > tangible medium) in order to use it. DeCSS does descramble, but not for > the purpose of access. It seems to me that what you get at point of sale is access to the encryption of the work, not the work itself. It seems to me that what CSS or DeCSS give you is access to the unencrypted work. It seems to me that how you use the resulting unencrypted work after applying CSS or DeCSS is totally your option and has nothing to do with CSS or DeCSS. I have a hard time understanding how to reconcile that with your view expressed above.... Did I go wrong somewhere? From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 8 23:15:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26418 for dvd-discuss-outgoing; Sat, 8 Jul 2000 23:15:57 -0400 Received: from dial149.roadrunner.com (dial149.cybermesa.com [209.12.75.149] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA26415 for ; Sat, 8 Jul 2000 23:15:55 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id VAA02266 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 21:15:22 -0600 Date: Sat, 8 Jul 2000 21:15:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000708211520.A2134@localhost> References: <39668913.C01AB581@mninter.net> <20000708111556.A553@localhost> <3967CF29.BD2BF0C0@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <3967CF29.BD2BF0C0@mninter.net>; from moseng@mninter.net on Sat, Jul 08, 2000 at 08:02:33PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 08, 2000 at 08:02:33PM -0500, Chris Moseng wrote: > Paul Fenimore wrote: > > These are my (Paul Fenimore's) words, not Bryan Taylor's: > > Sorry, Paul, I knew that was you, I deleted the part where I changed my > focus to you in revisions. Oops. No problem. My comment was intended as a clarification ... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 00:19:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26882 for dvd-discuss-outgoing; Sun, 9 Jul 2000 00:19:06 -0400 Received: from dial118.roadrunner.com (dial118.cybermesa.com [209.12.75.118] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26879 for ; Sun, 9 Jul 2000 00:19:02 -0400 Received: (from paul@localhost) by dial118.roadrunner.com (8.8.7/8.8.7) id WAA02425 for dvd-discuss@eon.law.harvard.edu; Sat, 8 Jul 2000 22:18:23 -0600 Date: Sat, 8 Jul 2000 22:18:22 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000708221822.A2288@localhost> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Sat, Jul 08, 2000 at 08:09:06PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 08, 2000 at 08:09:06PM -0700, David A. Wagner wrote: > In article <20000707182256.9303.qmail@web509.mail.yahoo.com>, > Bryan Taylor wrote: > > I contest this. DeCSS provides "use", not access. Access is provided by > > the contract of sale that constitutes first sale combined with physical > > possession of the media. You have to have access to a copy (fixed in a > > tangible medium) in order to use it. DeCSS does descramble, but not for > > the purpose of access. > > It seems to me that what you get at point of sale is access > to the encryption of the work, not the work itself. It seems > to me that what CSS or DeCSS give you is access to the unencrypted > work. It seems to me that how you use the resulting unencrypted > work after applying CSS or DeCSS is totally your option and has > nothing to do with CSS or DeCSS. I have a hard time understanding > how to reconcile that with your view expressed above.... Did I > go wrong somewhere? The statute says: (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. If one gets access every time one descrambles the ciphertext, then I think it is fair to say that "gain[ing] access to the work" _is_ descrambling. It also seems fairly clear that "requires the application of ... a process or a treatment" refers to descrambling the work. That leaves us in the bizarre situation that the Congress used two words ("process" and "access") to mean the same thing. I've been told that "statutory construction" says that's not the right way to read a statute. You raise another point that I've been thinking about which is that the statute refers to "the work", when the legislator knew that at least some (if not all) "access controls" would employ cryptography. So as you note, we've got two things hanging about -- the plaintext and the ciphertext. Not one. If industrial pirates avail themselves of the ciphertext to make bit-for-bit perfect copies, I don't think any judge is going to let them off the hook. The judge will correctly find that they made illegal copies --- of _the_ work. If an industrial pirate felt like making more work for himself, and descrambled the work first, the judge would still find infringement by copying the plaintext. I expect that in both cases, the courts would simply refer to illegal copying of _the_ work in question. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 01:42:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27237 for dvd-discuss-outgoing; Sun, 9 Jul 2000 01:42:50 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27234 for ; Sun, 9 Jul 2000 01:42:49 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA21607 for ; Sat, 8 Jul 2000 22:41:23 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA22684; Sat, 8 Jul 2000 22:40:04 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "authority" Date: 8 Jul 2000 22:38:57 -0700 Organization: A poorly-installed InterNetNews site Lines: 46 Distribution: isaac Message-ID: <8k935h$m4q$1@blowfish.isaac.cs.berkeley.edu> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> <20000708221822.A2288@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000708221822.A2288@localhost>, Paul Fenimore wrote: > The statute says: > > (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. > [...] > You raise another point that I've been thinking about which is that > the statute refers to "the work", when the legislator knew that at > least some (if not all) "access controls" would employ cryptography. > So as you note, we've got two things hanging about -- the plaintext > and the ciphertext. Not one. Yup. So far, no problems -- the plaintext is the work, and the ciphertext is the encryption of the work, right? So encryption can be said to ``effectively control access to a work'' under the above 1201-definition, assuming it is done correctly (so that it requires authority of the copyright owner, etc.). So I guess there's nothing in this reading of 1201 to bar encryption from being used as a statutorily protected access control device, no? Is that correct? > If industrial pirates avail themselves of the ciphertext to make > bit-for-bit perfect copies, I don't think any judge is going to > let them off the hook. The judge will correctly find that they made > illegal copies --- of _the_ work. An interesting point! If it's a 1201-case, there doesn't seem to be any potential for confusion: the judge can't find them guilty of copyright infringment, but instead only of circumventing a 1201-access control measure. I can't see any obvious unavoidable reason why making bit-for-bit copies can't be circumvention (assuming, of course, that everything is done right, so that descrambling requires authority of the copyright owner, etc.). The tricky bit seems to be if we ignore the DMCA and instead take classical copyright infringement. Is it indeed best to describe copying the ciphertext as copying the work, and if so, does that really commit us to saying that the ciphertext is the work? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 01:45:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27327 for dvd-discuss-outgoing; Sun, 9 Jul 2000 01:45:49 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27324 for ; Sun, 9 Jul 2000 01:45:47 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA21620 for ; Sat, 8 Jul 2000 22:44:22 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA22706; Sat, 8 Jul 2000 22:43:03 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "authority" Date: 8 Jul 2000 22:42:54 -0700 Organization: A poorly-installed InterNetNews site Lines: 33 Distribution: isaac Message-ID: <8k93cu$m5h$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB1@mail2.onetouch.com> <20000707123658.A1031@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <20000707123658.A1031@localhost>, Paul Fenimore wrote: > On Fri, Jul 07, 2000 at 10:29:55AM -0700, Richard Hartman wrote: > > 1) "Circumvention" is -defined- (or so I understand) as "access without > > authorization". > > > > 2) DeCSS provides the "access", that is uncontested. > > I'm going to change my mind and start contesting. > I know I've been saying that access is basically > decoding/descrambling of the ciphertext, but that leads to a > _weird_ conclusion. It means that the "access" in 1201(a)(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. > > (access is referenced circularly!), *is* the "process" mentioned > in the same sentence. This is too clever by half. As I was once > told very nicely by a lawyer, statutory construction says that > when different words are used, different meanings should be understood. I don't see the problem. The way I read it, the "access" is not the same as the "process". The "process" is the way you gain "access". The "access" is the result of the "process". The "process" is the means, the "access" is the end. No? Am I misunderstanding something, or reading it wrong? Why does this have to be a problem? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 01:55:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27406 for dvd-discuss-outgoing; Sun, 9 Jul 2000 01:55:33 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27403 for ; Sun, 9 Jul 2000 01:55:31 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA21648 for ; Sat, 8 Jul 2000 22:54:06 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA22750; Sat, 8 Jul 2000 22:52:47 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "authority" Date: 8 Jul 2000 22:52:38 -0700 Organization: A poorly-installed InterNetNews site Lines: 31 Distribution: isaac Message-ID: <8k93v6$m6s$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <5A8391CA2D9ED311AFAA080009D982B10B1CB6@mail2.onetouch.com>, Richard Hartman wrote: > In think what we have here is a conflation of two uses > of "access". One -- the one used by Bryan when he > contested my statement -- may be characterized as "physical > access". This use of "access" has possibly been used in > copyright law in the past, as it was one of the pertinant > issues. > > However, w/ digital data, physical access is not the only > form of access under discussion. The second use of "access" > is access to the data in a usable form. This use is more in > keeping w/ 1201 in that 1201 is discussing technological > "access" control methods and encryption in the same breath. > > I suggest that for purposes of discussion, the first form > (physical access) could and should be referred to as "possession" > in order to avoid confusion with the other. Perhaps one explanation for this confusion is that, if you don't consider encrypted (or otherwise protected) works, then "possession" implies "access to the data in a usable form". If you've got the one, you've always got the other. However, when you introduce encryption (and this is a novelty in the copyright domain, as far as I can tell), then mere "possession" does not imply that the data you've got is available in a usable format: you might have just the ciphertext, with no way to get at the unencrypted work. Or that's how it looks to this outsider, anyway. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 03:56:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA28710 for dvd-discuss-outgoing; Sun, 9 Jul 2000 03:56:59 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA28707 for ; Sun, 9 Jul 2000 03:56:58 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id DAA02470; Sun, 9 Jul 2000 03:56:33 -0400 Message-ID: <39683031.BC3B3777@mit.edu> Date: Sun, 09 Jul 2000 03:56:33 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available References: <20000706201104.A2928@localhost> <396557E0.FE21CB41@mit.edu> <8k8poh$m20$1@blowfish.isaac.cs.berkeley.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "David A. Wagner" wrote: > > In article <396557E0.FE21CB41@mit.edu>, > Ravi Nanavati wrote: > > "First, keys necessary for the authorized playback of the > > encrypted content are stored in an area of the DVD disc > > which is not normally accessible or copyable when a > > recording of a disc is made. Accordingly, if a user were to > > make a bit for bit copy of a CSS encrypted disc, the copy > > would be encrypted and the device on which playback is > > attempted would not be able to access the keys needed to > > decrypt the content. Moreover, even if the content were > > somehow copied in decrypted form, an authorized player > > would be unable to access the keys necessary to play > > back the unauthorized copy of the disc." > > I don't know who wrote this, but it is simply wrong. I can tell you who wrote this --- the DVD CCA [I was quoting their LOC post-hearing comments.] > It's unfortunate when people get the technical facts wrong, and then > base their analysis on false premises. > > Maybe what the author was trying to say is that > 1. You can't make bit-for-bit copies onto consumer-grade writeable discs; but > 2. Pirates _can_ make a bit-for-bit copy by pressing a DVD the same way > manufacturers do, and when you make a bit-for-bit copy, the result is just > as good as the original. Making bit-for-bit copies does not require > decrypting in any way. In fact, in an article referenced by Chris Moseng a pirate DVD mastering and replication facility was seized in Hong Kong in 1998 or 1999. > So, there's not much risk that the average man on the street will be churning > out bit-for-bit copies in his basement, but there is a very high risk that > copyright pirates will exploit bit-for-bit copying to sell pirated DVD's. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 04:08:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA28879 for dvd-discuss-outgoing; Sun, 9 Jul 2000 04:08:58 -0400 Received: from ts0210.bates.edu (root@ts0202.bates.edu [134.181.72.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA28876 for ; Sun, 9 Jul 2000 04:08:51 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id EAA00785 for ; Sun, 9 Jul 2000 04:11:23 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 9 Jul 2000 04:11:21 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On 8 Jul 2000, David A. Wagner wrote: > One important difference between `implementing CSS' and `circumventing > CSS' comes in when you consider whether you've got the authority of the > copyright holder. > > If "DVD players bought at Circuit City" were ruled to be implementing > CSS with the authority of the copyright holder, but DeCSS was ruled > to be implementing CSS without the authority of the copyright holder, > there might be an argument that DeCSS is circumventing CSS. Implemeting CSS must neccessarily be disconnected from circumventing (in any sense) CSS. CSS is an encryption algorithm (a fairly bad one). You could use it to send encrypted email, presumably. You would not them be circumventing CSS on either end (the DVDCCA might want to talk trade secrets though). This leads me to an interesting though - what if DeCSS were a Unix command line utility, used like so: % decss outfile and then you hooked up something like this: % copy-dvd /mnt/dvd | decss > ripped-video.vob DeCSS isn't illegal (under 1201), since it just decrypts any CSS-encrypted file (from email to vob). Copy-dvd isn't illegal, since it just copies whatever is on the dvd to stdout. What you're doing is probably fair use (an affirmative defense against 1201). So this is legal. Then what if you write a script to do this? Distribute the script? Distribute instructions for creating the script? The real DeCSS program is really just a GUI slapped on this imaginary script, right? How could that be illegal? sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5aEG6t+kM0Mq9M/wRAh5yAKCoD6gXEvfExHLVCfJzYRPqol1MfACg3LOW GlEE752b7B/4v4qnjBgcGN0= =iCxV -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 04:09:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA28894 for dvd-discuss-outgoing; Sun, 9 Jul 2000 04:09:43 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA28891 for ; Sun, 9 Jul 2000 04:09:42 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id DAA07486 for ; Sun, 9 Jul 2000 03:08:06 -0500 Message-ID: <39683326.F2A8B930@mninter.net> Date: Sun, 09 Jul 2000 03:09:10 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> <20000708221822.A2288@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 My girlfriend and I went around and around on this (a)(3)(B) vagueness. We're at a point that I'm going to drop it back in your laps. Emily is an editor for a closed caption company, and holds grammar dear (but claims no authority or divine providence). > 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. We feel that the problem lies in the phrase "to gain access to the work." One can read this as either "(to gain access) (to the work)," or as "(to gain) (access to the work)." Emily says that "to gain access" is a compound verb, and its object is the prepositional phrase "to the work." "Gaining access" is something that one "does to the work." I claim that "to gain" is a basic infinitive verb and "access to the work" is the object of that verb. One "gains" "access to the work." I think that Emily's reading leads to Paul's objections, but that mine avoids them. Hers disregards the intent of the whole of the paragraph because "access to the work" is the focus of the entire law, while her reading puts the value of the grammatical construct above the meaning. Not a terrible thing, but unproductive legally. So there's the problem, as we see it. Who'd like to choke this horse? - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWgzIzik9YADgV7kEQJo2gCg7ZCtpucG2M4HJFC1KKryu9CeSiwAoL3f IuYpXeB/NFUhWWFCcznwXUun =mV0M -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 04:14:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA29060 for dvd-discuss-outgoing; Sun, 9 Jul 2000 04:14:32 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA29057 for ; Sun, 9 Jul 2000 04:14:29 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id DAA07612 for ; Sun, 9 Jul 2000 03:12:52 -0500 Message-ID: <39683441.F799D99F@mninter.net> Date: Sun, 09 Jul 2000 03:13:53 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 > This leads me to an interesting though - what if DeCSS > were a Unix command line utility, used like so: > > % decss outfile - From my questions for the defense to ask of Prof Shamos: 8 In your opinion as a programmer, could the DeCSS source code be modified so DeCSS put its output somewhere else? 8a To RAM? 8b To the input of another program? 8c To the input of another function in the same program? 9 For a typical programmer with the source code, how difficult would modifying the destination of DeCSS's output be? [...] 11 Do programmers often create software in independantly functioning pieces, and then assemble those pieces into one program or a co-dependent suite of programs? (I'm releasing these in pieces, because I see no reason to give away everything to the plaintiffs at once so they can anticipate the possible questions. These may not even be asked, but I have suggsted them.) - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWg0Jzik9YADgV7kEQLvTACgqxy2keQ0fV+bKM/W6Q6dMimrli8AnRZK 1wUXLOb0YUiVy7QegRJlpDGZ =5Qut -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 04:53:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA29704 for dvd-discuss-outgoing; Sun, 9 Jul 2000 04:53:41 -0400 Received: from ts0210.bates.edu (root@ts0202.bates.edu [134.181.72.132]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA29701 for ; Sun, 9 Jul 2000 04:53:38 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id EAA07575 for ; Sun, 9 Jul 2000 04:56:11 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 9 Jul 2000 04:56:09 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <39683441.F799D99F@mninter.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Sun, 9 Jul 2000, Chris Moseng wrote: > > This leads me to an interesting though - what if DeCSS > > were a Unix command line utility, used like so: > > > > % decss outfile > > From my questions for the defense to ask of Prof Shamos: > > 8 In your opinion as a programmer, could the DeCSS source code be > modified so DeCSS put its output somewhere else? > 8a To RAM? > 8b To the input of another program? > 8c To the input of another function in the same program? > 9 For a typical programmer with the source code, how difficult would > modifying the destination of DeCSS's output be? > [...] > 11 Do programmers often create software in independantly functioning > pieces, and then assemble those pieces into one program or a > co-dependent suite of programs? But this isn't really the same as what I am asking, since currently DeCSS is designed to go from DVD-on-disc to unencrypted-vob-on-hd. Your questions address where the output goes, but if you vary the input, life gets even more interesting. What I want to know is which of these three steps are illegal. 1) Copy encrypted data to hd 2) unencrypt data using *general* decss tool 3) play vob Note that the tool in 2 is *not* illegal under 1201, unless you read it *very* broadly. If it was, I could encrypt my emails with GPG, copyright them, and then charge you with 1201 violation for being able to decrypt them. Using an encryption algorithm to encrypt movies cannot make that encryption algorithm illegal to break. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5aEw6t+kM0Mq9M/wRAo9BAKCkOdvfEMwkBnWvCTe9OqVm3JG3AACbBw6K Anw7JItvlRKmQ+rJW6/0/EE= =vHzE -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 10:06:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA30189 for dvd-discuss-outgoing; Sun, 9 Jul 2000 10:06:58 -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 KAA30186 for ; Sun, 9 Jul 2000 10:06:57 -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:2.21) with ESMTP id KAA25982 for ; Sun, 9 Jul 2000 10:05:38 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA23490; Sun, 9 Jul 2000 10:05:38 -0400 (EDT) Date: Sun, 9 Jul 2000 10:05:38 -0400 (EDT) Message-Id: <200007091405.KAA23490@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Authority: a thought experiment.... In-Reply-To: References: <39661ED1.8A023301@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > This cannot be true. Access *must* be granted to people for it to make > any sense at all (not legally, but logically). It can be granted to an > intersection of a group of people, and some other test, but the people are > required. Otherwise, if you steal all the required components, you would > be authorized. Therefore, although posession is 9/10 of the law, it > cannot be 9/10 of authorization. Here's another way of thinking about this. Consider two DVD players --- one being a standard commercial software DVD player, while the other is a LiVid player based on the css-auth code (which, like DeCSS, is under injunction). Install them on a computer, and put a DVD in the drive. Of course, both players will play the DVD. Which poses a bit of a problem for the plaintiffs... They want to claim that the LiViD player is circumventing CSS access control checks, or... well, doing something illegitimate. But the "legitimate", licensed DVD player is doing the exact same thing, whatever it is. So, how can the one be somehow circumventing an authority check which is being performed by the other? The only argument I can see would involve failure to implement some other restrictions, distinct from CSS per se, which are specified in the CSS license agreement. But those restrictions, whatever they might be, still wouldn't meet the test of "key provided by the copyright holder" (to authorized individuals only, as I've argued before, or it isn't really a key). That test was the clear intent of Congress, as shown by citations in the House debate from multiple members of the House Judiciary committee, which wrote the language at issue, including the chairman. And that would also raise the tying issue (and perhaps restraint of trade, if region coding is one of the mechanisms they're trying to protect... ) Yet another approach to this is in the "Nimmerville" thread from a few months back. Quoting an old message, discussing the argument that copyright holders have designated the player manufacturers (via the DVDCCA) as agents for selling keys to their works, something like a locksmith: First off, the usual arrangement with locksmiths is that different customers have locks operated by different keys. Not so with the DVDCCA; the player keys they license are skeleton keys which will open the locks on any "house" whose owner has hired them. Secondly, and more importantly, they give out these skeleton keys (embedded in DVD players produced by their licensees) to anyone who walks into a Best Buy and plops down the money for one. These transactions have nothing to do with anybody's "house"; they have nothing to do with the owner of that "house". The DVDCCA says, in effect, to consumers, "Here's a skeleton key; it'll cost you $300.00, and with it you can enter any house you like. Don't bother telling us which houses you're interested in; as far as we're concerned, a house is a house is a house. We're in the key business." To which I might have added that the skeleton keys are sold pursuant to a contract (the player license) which specifically disclaims the notion that possession of a skeleton key carries with it the legal right to enter anybody's house. The full message is http://eon.law.harvard.edu/archive/dvd-discuss/msg01828.html (which is me responding to a message by Richard Hartman which makes the same point, but subtly enough that I missed it the first time around; see further discussion). The "house" business is an analogy that comes from Nimmer's analysis of the DMCA, as first reported to the list, I think, in http://eon.law.harvard.edu/archive/dvd-discuss/msg01312.html rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 10:15:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA30462 for dvd-discuss-outgoing; Sun, 9 Jul 2000 10:15:09 -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 KAA30459 for ; Sun, 9 Jul 2000 10:15:08 -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:2.21) with ESMTP id KAA26370 for ; Sun, 9 Jul 2000 10:13:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA25369; Sun, 9 Jul 2000 10:13:48 -0400 (EDT) Date: Sun, 9 Jul 2000 10:13:48 -0400 (EDT) Message-Id: <200007091413.KAA25369@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "authority" In-Reply-To: References: <200007072146.RAA01755@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > I have to disagree here. I think that the customer is authorized when > they sign the cable co. contract. *As a result* of that authorization, > they are then given a key to decrypt the signal. Otherwise, we get into > the theivery problems I pointed out to Chris. Point taken... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 11:03:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30633 for dvd-discuss-outgoing; Sun, 9 Jul 2000 11:03:26 -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 LAA30630 for ; Sun, 9 Jul 2000 11:03:25 -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:2.21) with ESMTP id LAA28840 for ; Sun, 9 Jul 2000 11:02:06 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA06469; Sun, 9 Jul 2000 11:02:06 -0400 (EDT) Date: Sun, 9 Jul 2000 11:02:06 -0400 (EDT) Message-Id: <200007091502.LAA06469@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: References: <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th writes: > Implemeting CSS must neccessarily be disconnected from circumventing (in > any sense) CSS. CSS is an encryption algorithm (a fairly bad one). You > could use it to send encrypted email, presumably. You would not them be > circumventing CSS on either end (the DVDCCA might want to talk trade > secrets though). This leads me to an interesting though - what if DeCSS > were a Unix command line utility, used like so: Hmmm... is it? I've been using the term CSS to refer to the entire scheme --- the distribution of keys in particular places on the DVDs, the "bus key" business with the DVD drives, and not just the encryption algorithm per se. (I'm just quibbling about names here; your point about a standalone implementation of the encryption algorithm is interesting to say the least...) rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 15:26:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA31760 for dvd-discuss-outgoing; Sun, 9 Jul 2000 15:26:16 -0400 Received: from life.ai.mit.edu (life.ai.mit.edu [128.52.32.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA31757 for ; Sun, 9 Jul 2000 15:26:15 -0400 Received: from soggy-fibers.ai.mit.edu (soggy-fibers [128.52.32.48]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id PAA12845 for ; Sun, 9 Jul 2000 15:24:56 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA06688; Sun, 9 Jul 2000 15:24:56 -0400 (EDT) Date: Sun, 9 Jul 2000 15:24:56 -0400 (EDT) Message-Id: <200007091924.PAA06688@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" In-Reply-To: <39683326.F2A8B930@mninter.net> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> <20000708221822.A2288@localhost> <39683326.F2A8B930@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > > 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. > > We feel that the problem lies in the phrase "to gain access to the > work." Hmmm... I'm not sure that's the only ambiguity here which is relevant to the "confluence of events" theory (which is, I agree, what the MPAA has in mind). Taking your parses in reverse order: > "(to gain) (access to the work)." Under this interpretation, circumvention is, in effect, granting the thing-which-is-access without the authority of the copyright owner, while under this one: > "(to gain access) (to the work)," or as it's performing the process-of-gaining-access without authority However, there's another ambiguity, relating to my favorite phrase in this dreadful sentence "with the authority of the copyright owner". With *either* parse of "gain access", the authority could attach to either the person gaining access, or the means of performing the act. If authority attaches to the person, then something is access control if it performs some meaningful check on whether the viewer is authorized; Congress clearly anticipated that this would involve "a key provided by the copyright owner". In particular, this means that copyright owners couldn't decide that, say, MPEG decompression is an access control process, and start suing implementors of MPEG decompressors for DMCA violation, because an MPEG decompressor doesn't perform such a check. (Neither does CSS --- but I digress). On the other hand, authority could attach to the means of granting access. This seems to be the MPAA's interpretation --- they say that DeCSS is a circumvention tool because it hasn't been authorized by them to perform the CSS process, even though anybody who could run DeCSS could also buy a licensed CSS implementation (so it clearly isn't keeping anyone, authorized or not, from viewing the contents of any particular DVD). In short, on their interpretation, CSS is a process which is necessary to gain access to the work, and they have authorized particular means of performing that process, so any *other* means of performing that process is circumvention. But, on this interpretation of the "authority" phrase, they could say the same thing about *any* process or treatment which is necessary to gain access to a work --- such as, for example, MPEG decompression, which as necessary to gain access to the video on a DVD as CSS decryption. So they're claiming in effect that the DMCA allows them to designate *any* "process or treatment" which is necessary to gain access to their works as access control, and then assert an exclusive right to authorize that process or treatment --- which is to say, that they have patent-like protection for it (since a "process or treatment" is pretty clearly an invention). But the control they're claiming doesn't have any of the pesky limitations on patents, like the limited term, which are mandated in the Constitution. That, I think, is a problem for expansive interpretations of the "authority" phrase, including those which would allow copyright owners to designate any confluence of events (e.g., "you put the disk in our licensed widget, but not in America if it was stamped for sale in Europe"[*]) as required for authorization. It's also a problem that Congress clearly didn't mean to give copyright owners exclusive rights to perform any process --- remember, "persons may ... choose to implement a technological measure ... without regard to the input of affected parties." Or at least, that's how it looks to this non-lawyer. Of course, this may all be moot, at least at the trial level, if Kaplan is inclined to simply take the plaintiffs at their word regarding the interpretation of the law, which seems to be the way he's inclined so far. (One wonders what might get him to reconsider, short perhaps of Prof. Nimmer appearing on the stand to say that they're pulling a fast one...). rst [*] I'm not being sarcastic here --- that's exactly the effect of CSS plus region coding From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 16:54:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA31989 for dvd-discuss-outgoing; Sun, 9 Jul 2000 16:54:12 -0400 Received: from ts0210.bates.edu (root@ts0213.bates.edu [134.181.72.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA31986 for ; Sun, 9 Jul 2000 16:54:09 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id QAA03638 for ; Sun, 9 Jul 2000 16:56:45 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 9 Jul 2000 16:56:44 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <200007091502.LAA06469@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Sun, 9 Jul 2000, Robert S. Thau wrote: > sam th writes: > > Implemeting CSS must neccessarily be disconnected from circumventing (in > > any sense) CSS. CSS is an encryption algorithm (a fairly bad one). You > > could use it to send encrypted email, presumably. You would not them be > > circumventing CSS on either end (the DVDCCA might want to talk trade > > secrets though). This leads me to an interesting though - what if DeCSS > > were a Unix command line utility, used like so: > > Hmmm... is it? I've been using the term CSS to refer to the entire > scheme --- the distribution of keys in particular places on the DVDs, > the "bus key" business with the DVD drives, and not just the > encryption algorithm per se. > > (I'm just quibbling about names here; your point about a standalone > implementation of the encryption algorithm is interesting to say the > least...) You bring up a point which I neglected, that the encryption algorithm isn't the only thing. So you would need to add a negotiate program in between. copy-dvd \mnt\dvd | negotiate | decss > matrix.mpeg I realize that I wouldn't really work with pipes this easily, but you get the idea. The major problem with this is that combinations of legal things can become illegal. The parts to make an automatic weapon (in the rawest sense of parts) are easily availible, but that doesn't make it legal to have such a weapon. But what if the MPAA had done the following: 1) Encrypted their movies via rot13, plus a ceasar cipher. 2) Distributed the secret number (1<=x<=26) in DVD players. 3) Sued the makers of the new (much simpler) DeCSS, which was just a script doing the following: cp /mnt/dvd/*.vob /tmp rot13 /tmp/*.vob unceasar -5 /tmp/*.vob where 5 was the secret number. I have difficulty seeing what the legal differnce between the two cases is. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5aPUdt+kM0Mq9M/wRAvugAJ4oUti+U+vjkacIqmegGra6VBQH1gCfQ0g3 zT+YEdWIICWTgVrqFn1DAQQ= =vr4x -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 17:11:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA32140 for dvd-discuss-outgoing; Sun, 9 Jul 2000 17:11:20 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA32137 for ; Sun, 9 Jul 2000 17:11:19 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id ; Sun, 9 Jul 2000 17:14:25 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E22@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Sun, 9 Jul 2000 17:14:22 -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 have to be consistent. If you divide the phrase (effectively controls) (access to a work) then (to gain) (access to a work) but if (effectively controls access) (to a work) then (to gain access) (to a work) -- However, a linguist friend of mine sent me this: <<>> The trouble with the first reading is that verbs don't typically take PP objects. If there is an obligatory preposition that goes with a verb or verb compound I usually analyze it as part of the compound verb: "gain access to" (paralleling "put up with" and "talk to" and all those other prescriptive grammarians' nightmare). This makes "the work" the DObj of "gain access to." So then there are two objections: (1) "Gain access to" is hard to justify as a lexicalized verb compound. It doesn't seem to have the same psychological standing as "add up", etc. (2) Even if we do accept it as a compound verb, the argument that the object of any verb is inherently affected by the verb seems bogus. This may be true for the most prototypical transitive verbs (where an agent exerts a force on a patient), but there are plenty of verbs like "look at" where the subject is just an experiencer and the object is totally unaffected. <<>> ---- So there is a third reading, (gain access to) (a work). If you accept that, then you would need to accept (effectively controls access to) (a work). Food for thought. One thing to explore is "with the authority of the copyright owner." The question is if the authority of the copyright owner is inherent to the process which gains access to the work, or if it is a separable item. -----Original Message----- From: Chris Moseng [mailto:moseng@mninter.net] Sent: Sunday, July 09, 2000 4:09 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" > 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. We feel that the problem lies in the phrase "to gain access to the work." One can read this as either "(to gain access) (to the work)," or as "(to gain) (access to the work)." From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 19:02:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32426 for dvd-discuss-outgoing; Sun, 9 Jul 2000 19:02:25 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA32423 for ; Sun, 9 Jul 2000 19:02:24 -0400 Received: from 207-172-50-113.s367.tnt7.lnhva.md.dialup.rcn.com ([207.172.50.113] helo=[216.164.133.55]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 13BQ4P-0002VM-00 for dvd-discuss@eon.law.harvard.edu; Sun, 9 Jul 2000 19:01:06 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Sun, 9 Jul 2000 17:52:48 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] here is an idea for a defense 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 sam th wrote: > >You bring up a point which I neglected, that the encryption algorithm >isn't the only thing. So you would need to add a negotiate program in >between. > >copy-dvd \mnt\dvd | negotiate | decss > matrix.mpeg > >I realize that I wouldn't really work with pipes this easily, but you get >the idea. I don't know if you're familiar with the livid cvs archive, so I'll just gloss over a document from oms/src/css/README: the css package contains these programs: tstdvd, reset_dvd, dvdinfo, and css_cat (plus a few libraries) reset-dvd is for backtracking if you've made a mistake tstdvd unlocks (authenticates) the disk it is used as follows: tstdvd /dev/dvd #authenticates the disc and saves the disk key as "disk-key" mount /dev/dvd /mnt/dvd #standard command for mounting a drive tstdvd /dev/dvd /mnt/dvd/video_ts/vts_01_1.vob #saves the title key as "title-key" (done for each title). It is necessary to rename this file as #title1-key, title2-key, etc dvdinfo /dev/dvd #displays authentication status, copyright info, region info, etc. cat /dvd/video_ts/vts_01_[1-9].vob | css-cat -v1P - | mpeg2player -vob -f - #plays video titles through mpeg2player the tstdvd is the authenticator, and css_cat is the decoder (btw, oms is much easier to use) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 19:14:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA32630 for dvd-discuss-outgoing; Sun, 9 Jul 2000 19:14:01 -0400 Received: from ts0210.bates.edu (root@ts0213.bates.edu [134.181.72.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA32627 for ; Sun, 9 Jul 2000 19:13:59 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id TAA07217 for ; Sun, 9 Jul 2000 19:16:37 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 9 Jul 2000 19:16:35 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Sun, 9 Jul 2000, Jeremy Erwin wrote: > the css package contains these programs: tstdvd, reset_dvd, dvdinfo, > and css_cat (plus a few libraries) > reset-dvd is for backtracking if you've made a mistake > tstdvd unlocks (authenticates) the disk Well, whaddaya know . . . :-) so, my only question is, can css-cat be used on anything implementing the css encryption algorithm? If so, which is the illegal program? sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5aRXlt+kM0Mq9M/wRAkzgAJ9FMOdCgJ5Wh90UtV0S+8pwa3SvQACeI6Hr znHAdYGgjEw7QNV1v/ExI80= =+hiK -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 19:35:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA00495 for dvd-discuss-outgoing; Sun, 9 Jul 2000 19:35:52 -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 TAA00492 for ; Sun, 9 Jul 2000 19:35:51 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 090FB99C86; Sun, 9 Jul 2000 16:34:31 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id ED5FE938C1 for ; Sun, 9 Jul 2000 16:34:31 -0700 (PDT) Date: Sun, 9 Jul 2000 16:34:31 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <20000708111556.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 On Sat, 8 Jul 2000, Paul Fenimore wrote: > > Authorization is granted when you are given the key AND because you > > signed the agreement AND when you use an authorized device to utilize > > the authorized key. All three. Maybe more. Whatever the authorizing body > > wants. > In principle yes. But in the case of CSS, no. Make two scenarios, one > with a stolen DVD, one with a purchased DVD. Play them both in the > *same* DVD player. The DVD player does its thing regardless of the > theft-status of a disk. The player *can't* be conveying authorization, > regardless of what "access" means. Authorization by this reasoning happens only when multiple things happen. In the case of the stolen DVD, not all of the multiple things happen, so it's not authorized. What you've succeeded in proving is that the player can't be a sufficient condition to convey authorization, not that it can't be a necessary condition. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 20:12:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA00768 for dvd-discuss-outgoing; Sun, 9 Jul 2000 20:12:25 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA00765 for ; Sun, 9 Jul 2000 20:12:24 -0400 Received: from 207-172-50-113.s367.tnt7.lnhva.md.dialup.rcn.com ([207.172.50.113] helo=[216.164.133.55]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 13BRAA-0002XS-00 for dvd-discuss@eon.law.harvard.edu; Sun, 9 Jul 2000 20:11:06 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Sun, 9 Jul 2000 20:10:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] here is an idea for a defense 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 >-----BEGIN PGP SIGNED MESSAGE----- >Hash: SHA1 > >On Sun, 9 Jul 2000, Jeremy Erwin wrote: > > > the css package contains these programs: tstdvd, reset_dvd, dvdinfo, > > and css_cat (plus a few libraries) > > reset-dvd is for backtracking if you've made a mistake > > tstdvd unlocks (authenticates) the disk > >Well, whaddaya know . . . :-) >so, my only question is, can css-cat be used on anything implementing the >css encryption algorithm? If so, which is the illegal program? DeCSS decodes a vob file (after authenticating) and copies it to a hard drive. The original method of decoding dvds under linux is basically cat title_01.vob | css_cat | mpeg2dec The same programs could be used in the following manner cat title_01.vob | css_cat > ~/title_01.vob or even cat title_01.vob | css_cat | make_divx > title_01.asf With oms, the situation is a little different. Various video plugins are available that (for instance) decode to 3dfx, xv, X11, mga or sdl. These plugins work with various video cards and software. It would be trivial to write a plugin that simply copies to a hard disk. Supposedly, the CSS specifications require that this information be "protected" in some manner, so that this sort of interception is made somewhat more difficult. For instance, the Macintosh DVD Player requires that MacsBug (the standard lowlevel debugger) be turned off. This is known to be annoying. Of course, neither the livid developers nor the creators of DeCSS signed this agreement, and as such, are not bound by the requirements. I believe the DVDCCA/MPAA would like the court to recognize unlicensed implementations as illegal, but failing that, to ban devices allowing interception of the unencrypted stream. Of course, debuggers would probably qualify as interception devices, leading to a rather nightmarish (and cliched) scenario Jeremy Jeremy From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 21:14:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01137 for dvd-discuss-outgoing; Sun, 9 Jul 2000 21:14:20 -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 VAA01133 for ; Sun, 9 Jul 2000 21:14:20 -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:2.21) with ESMTP id VAA01754 for ; Sun, 9 Jul 2000 21:13:02 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA23816; Sun, 9 Jul 2000 21:13:01 -0400 (EDT) Date: Sun, 9 Jul 2000 21:13:01 -0400 (EDT) Message-Id: <200007100113.VAA23816@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" In-Reply-To: <200007091924.PAA06688@soggy-fibers.ai.mit.edu> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> <20000708221822.A2288@localhost> <39683326.F2A8B930@mninter.net> <200007091924.PAA06688@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A footnote to my own argument: Robert S. Thau writes: > On the other hand, authority could attach to the means of granting > access. This seems to be the MPAA's interpretation --- they say that > DeCSS is a circumvention tool because it hasn't been authorized by > them to perform the CSS process, even though anybody who could run > DeCSS could also buy a licensed CSS implementation (so it clearly > isn't keeping anyone, authorized or not, from viewing the contents of > any particular DVD). It's worth noting that on this interpretation, it wouldn't matter a bit that the player licenses say that they don't carry authority to view any particular work --- they don't have to. The authority comes from the copyright holders' assertion (to whom? does it matter?) that a given DVD can only be legally played on a player that has a license. Which shows how expansive this interpretation is --- the MPAA apparently claims that the DMCA allows them, in effect, to write their own laws determining who may view their works, when, and how. Which certainly annihilates any notion of balance of the interests of copyright holders and the public at large, among other unsavory consequences. (Which brings me back around to my "Lessig-land" posts from way back, which assumed an expansive interpretation of the DMCA, before I'd gone into the legislative history and noticed that the folks in Congress who wrote and voted on the bill seem to have a different idea of what it meant than the MPAA. See for instance ... http://eon.law.harvard.edu/archive/dvd-discuss/msg00652.html ... though even the restrictive interpretation of the "authority" bit may very well have Constitutional problems...). rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 23:24:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA01945 for dvd-discuss-outgoing; Sun, 9 Jul 2000 23:24:23 -0400 Received: from ts0210.bates.edu (root@ts0213.bates.edu [134.181.72.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA01942 for ; Sun, 9 Jul 2000 23:24:20 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id XAA13692 for ; Sun, 9 Jul 2000 23:26:57 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sun, 9 Jul 2000 23:26:55 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Sun, 9 Jul 2000, Jeremy Erwin wrote: > >-----BEGIN PGP SIGNED MESSAGE----- > >Hash: SHA1 > > > >On Sun, 9 Jul 2000, Jeremy Erwin wrote: > > > > > the css package contains these programs: tstdvd, reset_dvd, dvdinfo, > > > and css_cat (plus a few libraries) > > > reset-dvd is for backtracking if you've made a mistake > > > tstdvd unlocks (authenticates) the disk > > > >Well, whaddaya know . . . :-) > >so, my only question is, can css-cat be used on anything implementing the > >css encryption algorithm? If so, which is the illegal program? > > DeCSS decodes a vob file (after authenticating) and copies it to a > hard drive. The original method of decoding dvds under linux is > basically > > cat title_01.vob | css_cat | mpeg2dec > > The same programs could be used in the following manner > > cat title_01.vob | css_cat > ~/title_01.vob > > or even > > cat title_01.vob | css_cat | make_divx > title_01.asf But my question is, if you had a program to encrypt files using the CSS algorithm called css-enc, and did the following: cat secret_email | css-enc > secret_email.enc could you then do cat secret_email.enc | css-cat > not-so-secret-anymore ? In other words, does css-cat only work on vob files? Could CSS encryption only work on vob files? sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5aVCRt+kM0Mq9M/wRAtG0AJ9AvfnvHUsYKYHbPqV2BQ9aHflj7ACfUBTC hlS6tcLDE5FduYwLOoFsUQk= =cJL8 -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 9 23:46:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02092 for dvd-discuss-outgoing; Sun, 9 Jul 2000 23:46:30 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA02089 for ; Sun, 9 Jul 2000 23:46:30 -0400 Received: from 216-164-130-191.s572.tnt2.lnhva.md.dialup.rcn.com ([216.164.130.191] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 13BUVL-0007NJ-00 for dvd-discuss@eon.law.harvard.edu; Sun, 9 Jul 2000 23:45:12 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Date: Sun, 9 Jul 2000 23:33:05 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: MIME-Version: 1.0 Message-Id: <00070923433501.00785@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 10 Jul 2000, you wrote: > > But my question is, if you had a program to encrypt files using the CSS > algorithm called css-enc, and did the following: > > cat secret_email | css-enc > secret_email.enc > > could you then do > > cat secret_email.enc | css-cat > not-so-secret-anymore > > ? > > In other words, does css-cat only work on vob files? Could CSS encryption > only work on vob files? > I took a look at the css-cat code, and I don't think it's quite that flexible. Several lines refer to DVD structures. For instance, it detects Mpeg, Mpeg Audio and AC3 frames and does what appers to be error checking. But I'm not all that familiar with the code, nor am I a cryptographer. It's straight C, but for some reason, the Livid folks seem to be fond of goto statements. Don't ask me why... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 11:06:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05660 for dvd-discuss-outgoing; Mon, 10 Jul 2000 11:06:19 -0400 Received: from dial80.roadrunner.com (dial80.cybermesa.com [209.12.75.80] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA05657 for ; Mon, 10 Jul 2000 11:06:16 -0400 Received: (from paul@localhost) by dial80.roadrunner.com (8.8.7/8.8.7) id JAA00751 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 09:04:19 -0600 Date: Mon, 10 Jul 2000 09:04:18 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000710090417.A553@localhost> References: <20000707182256.9303.qmail@web509.mail.yahoo.com> <8k8qci$m2v$1@blowfish.isaac.cs.berkeley.edu> <20000708221822.A2288@localhost> <39683326.F2A8B930@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39683326.F2A8B930@mninter.net>; from moseng@mninter.net on Sun, Jul 09, 2000 at 03:09:10AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 09, 2000 at 03:09:10AM -0500, Chris Moseng wrote: [ ... ] > My girlfriend and I went around and around on this (a)(3)(B) vagueness. > We're at a point that I'm going to drop it back in your laps. Emily is > an editor for a closed caption company, and holds grammar dear (but > claims no authority or divine providence). > > > 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. > > We feel that the problem lies in the phrase "to gain access to the > work." > > One can read this as either > "(to gain access) (to the work)," or as > "(to gain) (access to the work)." > > Emily says that "to gain access" is a compound verb, and its object is > the prepositional phrase "to the work." "Gaining access" is something > that one "does to the work." > > I claim that "to gain" is a basic infinitive verb and "access to the > work" is the object of that verb. One "gains" "access to the work." > > I think that Emily's reading leads to Paul's objections, but that mine > avoids them. Hers disregards the intent of the whole of the paragraph > because "access to the work" is the focus of the entire law, while her > reading puts the value of the grammatical construct above the meaning. > Not a terrible thing, but unproductive legally. > > So there's the problem, as we see it. Who'd like to choke this horse? I think the main question is whether or not access, noun or verb, happens, or is achieved, once or every time the "process" is run. The particular fill-in-the-blank that I gave used the verb form, but I don't think that reading the phrase as (to gain) (access to the work) helps the P's much. They trade one set of problems for another. "[A]ccess to the work" means "the state from which one can make use of the plaintext". This is the product of the "process", rather than being the process. True, they haven't read the difference between "process" and "access" out of existence. One of the big problems that I see is that both the P's, and the court in the Jan. Memorandum, move freely back and forth between a def'n of access that is clearly related to infringement and subsumes 1201(b), and a definition of "access" as something that only happens before use, so considerations of use are "irrelevant" because "this isn't an infringement case". They can't have it both ways. So far as I can see, there are three alternatives for "access" 1. Once. 1201-access == commercial-access (this is what Congress though they were legislating), 2. Over and over. a. 1201-access == process, b. 1201-access == the state of having the plaintext. This is the product of the process, rather than the process. "1" is what Congress meant. CSS isn't about access control with this reading of the statute. Authority simply isn't relevant. "2a" The statute trades circularity for reading a word out of existence. As a by-product of this particular broken-ness, access isn't about fair use, it comes before it. Except that to get fair use out of the picture, we've had to erase the meaning of one word (access) and replace it with another (process). "2b" The statute keeps circularity, but access is now the state from which use of the plaintext is possible. Not-access is the state from which use of the plaintext is not-possible. P's cannot now claim that fair use and non-copyright use are irrelevant. This list is not exhaustive. In particular "2b" has a number of other problems with it. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 11:40:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06225 for dvd-discuss-outgoing; Mon, 10 Jul 2000 11:40:15 -0400 Received: from orange.fenimore.org (dial222.cybermesa.com [209.12.75.222] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06222 for ; Mon, 10 Jul 2000 11:40:00 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id JAA00913 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 09:39:21 -0600 Date: Mon, 10 Jul 2000 09:39:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000710093919.A769@localhost> References: <20000708111556.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 Sun, Jul 09, 2000 at 04:34:31PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 09, 2000 at 04:34:31PM -0700, Ken Arromdee wrote: > On Sat, 8 Jul 2000, Paul Fenimore wrote: > > > Authorization is granted when you are given the key AND because you > > > signed the agreement AND when you use an authorized device to utilize > > > the authorized key. All three. Maybe more. Whatever the authorizing body > > > wants. > > In principle yes. But in the case of CSS, no. Make two scenarios, one > > with a stolen DVD, one with a purchased DVD. Play them both in the > > *same* DVD player. The DVD player does its thing regardless of the > > theft-status of a disk. The player *can't* be conveying authorization, > > regardless of what "access" means. > > Authorization by this reasoning happens only when multiple things happen. In > the case of the stolen DVD, not all of the multiple things happen, so it's not > authorized. > > What you've succeeded in proving is that the player can't be a sufficient > condition to convey authorization, not that it can't be a necessary condition. True, it is more complicated. Adding a stolen player to make four states: stolen-stolen, legit-stolen, stolen-legit, legit-legit completes the technological picture, I think. All four get access to the work. There are two avenues to follow down the player is part of authority line (and others, not mentioned here). 1. Patent-like rights to copyright owners. 2. Either "authority" is *simply* the say-so of the copyright owner, or the technological means have something to do with conveying "authority". Regarding "2", the U.S. Congress could have passed a statute that simply said, "Copyright owners will have the exclusive right to grant or deny access to their works." Clearly, this would simply be the say-so of the copyright owner. Then we'd get some constitutional review on the validity of the statute. However, the subject of 1201 is technological access control. If the technological part of the control isn't important, I don't see any reason for the (a)(2) trafficking-ban to exist. I think the actual function of the technological means have to have some read-world role in granting access. Otherwise we're reduced to, "the statute means what I want it to mean". I think this is related to the point raised previously about whether tar'ing, cpio'ing, gzip'ing etc. of data are access controls. 1201-access == commercial-access makes these examples go away as effective access controls. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 12:02:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06414 for dvd-discuss-outgoing; Mon, 10 Jul 2000 12:02:11 -0400 Received: from dial126.roadrunner.com (dial126.cybermesa.com [209.12.75.126] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA06411 for ; Mon, 10 Jul 2000 12:02:08 -0400 Received: (from paul@localhost) by dial126.roadrunner.com (8.8.7/8.8.7) id KAA01113 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 10:01:32 -0600 Date: Mon, 10 Jul 2000 10:01:30 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000710100130.A1022@localhost> References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000710093919.A769@localhost>; from fenimore@roadrunner.com on Mon, Jul 10, 2000 at 09:39:20AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 09:39:20AM -0600, Paul Fenimore wrote: [ ... ] > 1201-access == commercial-access makes these examples go away as > effective access controls. This is wrong and doesn't make sense. The issue is whether the word "requires" in (a)(3)(B) actually means something about how the technological measure works, or simply a synonym for "exists". As in, "the technological measure must actually exist." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 12:23:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06585 for dvd-discuss-outgoing; Mon, 10 Jul 2000 12:23:38 -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 MAA06582 for ; Mon, 10 Jul 2000 12:23:37 -0400 Message-ID: <20000710162149.21284.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Mon, 10 Jul 2000 09:21:49 PDT Date: Mon, 10 Jul 2000 09:21:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Streambox 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 --- "David A. Wagner" wrote: > In article <20000707165857.5164.qmail@web512.mail.yahoo.com>, > Bryan Taylor wrote: > > I'm sorry you think the copy-bit is an "obnoxious restriction". It > > really nothing more that an explicit statement of authorization > > status to copy the author's copyrighted work. Bummer if you > > think of 17 USC 106 as an obnoxious restriction. You have no > > right to be able to copy this work unless the bit is set to > > "ok to copy". > > Uhh, you seem to think that copyright owners are allowed to designate > any use they like as infringing uses. I'm at a loss to see why this > should be so, under a classical copyright regime (no DMCA). Unauthorized copying is presumptively infringement unless the copier can wield the affirmative defense of fair use. This involves the four factors. The factors are listed in 107 of the Copyright Act: (1) Purpose of use: commercial or non-profit/educational (2) Nature of work [factual vs artistic] (3) Amount of work copied (4) Effect on market value A substantial part of the analysis under 4 (which is weighted the most among the factors)is whether the copyright owner receives his just reward in the marketplace. Claims of fair use are MUCH tougher if you haven't paid, because copying to avoid payment in any way tosses any claims to win on (4). > Consider time-shifting. Space-shifting. Fair use excerpts. And so > on. If I understand correctly, the law does not allow copyright > holders to simply declare those uses as forbidden without > authorization. Those uses are legally protected. If copyright > holders don't like it, too bad. Recording for time shifting has been upheld in the context of changing when an otherwise free (gift) broadcast would be viewed. It isn't really relevant to RealNetworks since you can access on demand anyway. The holding in Sony was based purely on statutory reasoning: "when Congress has not plainly marked the course to be followed, the judiciary must be circumspect in construing the scope of rights created by a statute that never contemplated such a calculus of interests." It would be difficult to argue that the DMCA doesn't provide such guidance in the context of free distribution of encrypted works. Time-shifting isn't really an issue with these because the encrypted work can be stored. Space-shifting refers to translating the format of a work that you paid for. For example, I doubt you could claim space shifting by walking into the record store and MP3'ing one of the CD's and attempting to leave. > So how again is this a straightforward 17 USC 106 issue? You lose on fair use factor (4) if you avoid paying or impact the ability of advertising revenue to flow to the author by defeating the system that links the two. You were already going to lose on (2) and (3), so it does seem pretty straight forward. > Why is it so wrong to call "copy bits" obnoxious? If it's a work you havn't paid for your claim to have a fair use by copying it is pretty weak. Copy-protection on works you DO pay for is a different matter. You can't deny that something changes the minute you pull out your wallet. > Why do you say I never have any right to copy the work unless the bit > is set to "ok to copy"? Well, the burden would be on you to prove a claim of fair use. The copy-bit communicates the author's statement "No permission from me". It appears very unlikely that you can win on factor (2),(3), or (4) and (1) is probably only break even, unless you are an educator or non-profit organizaiton. Again, the whole thing changes when you pay, because then you carry (4). __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 12:51:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06877 for dvd-discuss-outgoing; Mon, 10 Jul 2000 12:51:11 -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 MAA06874 for ; Mon, 10 Jul 2000 12:51:10 -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:2.21) with ESMTP id MAA14350 for ; Mon, 10 Jul 2000 12:49:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA20103; Mon, 10 Jul 2000 12:49:53 -0400 (EDT) Date: Mon, 10 Jul 2000 12:49:53 -0400 (EDT) Message-Id: <200007101649.MAA20103@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <20000710100130.A1022@localhost> References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> <20000710100130.A1022@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > On Mon, Jul 10, 2000 at 09:39:20AM -0600, Paul Fenimore wrote: > [ ... ] > > 1201-access == commercial-access makes these examples go away as > > effective access controls. > > This is wrong and doesn't make sense. The issue is whether the word > "requires" in (a)(3)(B) actually means something about how the > technological measure works, or simply a synonym for "exists". As in, > "the technological measure must actually exist." Hmmm... a grammar quibble: I'd say the full phrase at issue is in: "requires ... with the authority of the copyright owner", whether "the authority of the copyright owner" is something the *technological measure* is supposed to require... which, if so, brings me back to yesterday's argument. But this could be another time I'm missing some subtlety of a legal definition... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 12:55:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06992 for dvd-discuss-outgoing; Mon, 10 Jul 2000 12:55:12 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA06989 for ; Mon, 10 Jul 2000 12:55:11 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA23013 for ; Mon, 10 Jul 2000 11:53:28 -0500 Message-ID: <3969FF52.A147AA41@mninter.net> Date: Mon, 10 Jul 2000 11:52:34 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case References: <20000710162149.21284.qmail@web510.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 said: > A substantial part of the analysis under 4 (which is weighted the most > among the factors)is whether the copyright owner receives his just > reward in the marketplace. Claims of fair use are MUCH tougher if you > haven't paid, because copying to avoid payment in any way tosses any > claims to win on (4). [...] > Recording for time shifting has been upheld in the context of changing > when an otherwise free (gift) broadcast would be viewed. It isn't > really relevant to RealNetworks since you can access on demand anyway. [...] > You lose on fair use factor (4) if you avoid paying or impact the > ability of advertising revenue to flow to the author by defeating the > system that links the two. You were already going to lose on (2) and > (3), so it does seem pretty straight forward. [...] > If it's a work you havn't paid for your claim to have a fair use by > copying it is pretty weak. Copy-protection on works you DO pay for is a > different matter. You can't deny that something changes the minute you > pull out your wallet. The moment my computer loads the advertisements the first time, the ad-commerce has taken place. Copyright owners are not granted the right to control a copy of the work beyond that point. Specifically, they are not granted the right to make ad-revenue every time someone wants to access the work--once the consumer has made their payment (micro as it is), they lose control of that copy of the work, copy bit or not. I would even go farther, and say that ad-based commerce is not quite analogous to a store where you buy things. It is more like a box on the street with a sign on it, and the sign says that you have to read the sign before you take a copy of whats in the box. It doesn't have the same effect. Taking something from the box without seeing the sign might be unfortunate, but not a crime. > Well, the burden would be on you to prove a claim of fair use. The > copy-bit communicates the author's statement "No permission from me". The author has no authority to back that statement, certainly not from copyright. Keep in mind that losing on individual points is not a loss, just a consideration. Fair Use is not restricted to Factual-class works, for instance. Each of those tests is a consideration, not a deal breaker. If they were, the guidline would not balance the public interest. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 14:14:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07395 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:14:46 -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 OAA07392 for ; Mon, 10 Jul 2000 14:14:42 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C1GH>; Mon, 10 Jul 2000 11:13:25 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CBB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Declaration of Michael Shamos Date: Mon, 10 Jul 2000 11:13:22 -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: Ravi Nanavati [mailto:ravi_n@mit.edu] ... > > I think the MPAA would agree that Prof. Shamos did not circumvent CSS. > They will simply argue that Prof. Shamos's non-circumventing use of > DeCSS (to gather evidence for a court case about DeCSS) is not a > commercially significant use of DeCSS, so it should not stand in > the way of DeCSS being banned. More generally, they will argue that > in the absence of court cases about DeCSS copyright holders have > no commercially significant reason to give third parties the authority > to descramble works with DeCSS. > It doesn't matter if Prof. Shamos' use was a "commercially significant" use. If his act of access using DeCSS is classified as "non-circumventing" because he had the -authority- to access the work (by explicit permission from the copyright holder) then other people could use the same tool for -other- non-circumventing acts based on otherauthority (such as fair use or first sale "for home use only"). -- -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 Jul 10 14:18:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07549 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:18:12 -0400 Received: from dial165.roadrunner.com (sf-du165.cybermesa.com [209.12.75.165]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07531 for ; Mon, 10 Jul 2000 14:18:09 -0400 Received: (from paul@localhost) by dial165.roadrunner.com (8.8.7/8.8.7) id MAA01636 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 12:17:36 -0600 Date: Mon, 10 Jul 2000 12:17:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000710121733.A1526@localhost> References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> <20000710100130.A1022@localhost> <200007101649.MAA20103@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: <200007101649.MAA20103@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Jul 10, 2000 at 12:49:53PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 12:49:53PM -0400, Robert S. Thau wrote: > Paul Fenimore writes: > > On Mon, Jul 10, 2000 at 09:39:20AM -0600, Paul Fenimore wrote: > > [ ... ] > > > 1201-access == commercial-access makes these examples go away as > > > effective access controls. > > > > This is wrong and doesn't make sense. The issue is whether the word > > "requires" in (a)(3)(B) actually means something about how the > > technological measure works, or simply a synonym for "exists". As in, > > "the technological measure must actually exist." > > Hmmm... a grammar quibble: I'd say the full phrase at issue is in: > > "requires ... with the authority of the copyright owner", > > whether "the authority of the copyright owner" is something the > *technological measure* is supposed to require... which, if so, brings > me back to yesterday's argument. > > But this could be another time I'm missing some subtlety of a legal > definition... What you wrote above nails it. If you've missed a subtle point, so have I. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 14:25:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08047 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:25:15 -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 OAA08044 for ; Mon, 10 Jul 2000 14:25:11 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C1G7>; Mon, 10 Jul 2000 11:23:57 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CBC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Mon, 10 Jul 2000 11:23:49 -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: Jeff Waller [mailto:jeff-w@mindspring.com] ... > So perhaps access of old meant physical access, (but maybe not) > however, we can argue that it should mean digital access too. That > is if you are granted physical access to copy of a > copyrighted work (you > possess it) then you are also given digital access to a copy of > a copyrighted work. This would be well and good if it weren't for the Circuit City Divx marketing methodology where possession of the physical medium (physical access) did -not- automatically grant viewing priviledges (data access). You had to pay an additional "unlock" fee to see the movie again after the initial viewing period was up. This (now defunct) technology is one that 1201 could be applied to. If somebody came up w/ a program to let you have access to the Divx movie w/o paying the fee, then that would certainly be circumvention and prosecutable. But all of the foregoing ONLY applies because the terms were given up front. You knew when you purchased the physical medium what the deal was: limited viewing period, additional fee required for further viewing. This is NOT the case w/ "standard" DVDs, where the only terms are "for home use only". >Both must be granted for otherwise the work is > useless to you though you own it, and so if one must always > follow from > the other then we may speak of them in the same breath as two aspects > of the same thing. > Sorry, since there are situations where we can and must not speak of them in the same breath, drawing the distinction, following the consequences, and then applying same to the DVD authority model is in our best interests. -- -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 Jul 10 14:29:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08133 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:29:00 -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 OAA08130 for ; Mon, 10 Jul 2000 14:28:58 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C1HJ>; Mon, 10 Jul 2000 11:27:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CBD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Mon, 10 Jul 2000 11:27:38 -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] ... > You raise another point that I've been thinking about which is that > the statute refers to "the work", when the legislator knew that at > least some (if not all) "access controls" would employ cryptography. > So as you note, we've got two things hanging about -- the plaintext > and the ciphertext. Not one. In my construction, your access to the ciphertext equates to my "physical access" and your access to the plain text equates to my "access" (or "data access"). -- -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 Jul 10 14:33:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08318 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:33:20 -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 OAA08296 for ; Mon, 10 Jul 2000 14:33:18 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C1HW>; Mon, 10 Jul 2000 11:32:07 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CBE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Mon, 10 Jul 2000 11:32:04 -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] ... > However, there's another ambiguity, relating to my favorite phrase in > this dreadful sentence "with the authority of the copyright owner". > With *either* parse of "gain access", the authority could attach to > either the person gaining access, or the means of performing the act. > > If authority attaches to the person, then something is access control > if it performs some meaningful check on whether the viewer is > authorized; Congress clearly anticipated that this would involve "a > key provided by the copyright owner". In particular, this means that > copyright owners couldn't decide that, say, MPEG decompression is an > access control process, and start suing implementors of MPEG > decompressors for DMCA violation, because an MPEG decompressor doesn't > perform such a check. (Neither does CSS --- but I digress). > > On the other hand, authority could attach to the means of granting > access. This seems to be the MPAA's interpretation --- they say that > DeCSS is a circumvention tool because it hasn't been authorized by > them to perform the CSS process, even though anybody who could run > DeCSS could also buy a licensed CSS implementation (so it clearly > isn't keeping anyone, authorized or not, from viewing the contents of > any particular DVD). To paraphrase an argument from another controversial subject: machines don't commit copyright violation, people do. In other words authority -must- attach to the person performing the act. If it did not, then you could not prosecute anybody for violations, you could only arrest their computers ( 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 Jul 10 14:57:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA08614 for dvd-discuss-outgoing; Mon, 10 Jul 2000 14:57:11 -0400 Received: from dial247.roadrunner.com (dial247.cybermesa.com [209.12.75.247] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA08611 for ; Mon, 10 Jul 2000 14:57:07 -0400 Received: (from paul@localhost) by dial247.roadrunner.com (8.8.7/8.8.7) id MAA01797 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 12:56:31 -0600 Date: Mon, 10 Jul 2000 12:56:30 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Declaration of Michael Shamos Message-ID: <20000710125630.A1656@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CBB@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CBB@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Jul 10, 2000 at 11:13:22AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 11:13:22AM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Ravi Nanavati [mailto:ravi_n@mit.edu] > ... > > > > I think the MPAA would agree that Prof. Shamos did not circumvent CSS. > > They will simply argue that Prof. Shamos's non-circumventing use of > > DeCSS (to gather evidence for a court case about DeCSS) is not a > > commercially significant use of DeCSS, so it should not stand in > > the way of DeCSS being banned. More generally, they will argue that > > in the absence of court cases about DeCSS copyright holders have > > no commercially significant reason to give third parties the authority > > to descramble works with DeCSS. > > > > It doesn't matter if Prof. Shamos' use was a "commercially > significant" use. If his act of access using DeCSS is classified as > "non-circumventing" because he had the -authority- to access the work > (by explicit permission from the copyright holder) then other people > could use the same tool for -other- non-circumventing acts based on > otherauthority (such as fair use or first sale "for home use only"). Does the fact that anti-circumvention 1201(a)(1) is not yet in force make it more difficult to run this argument by the court? I think I'm asking if effectively (there's that word again!) there are issues of standing, or if the hypothetical is good enough to make the point to the court. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:14:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08759 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:14:00 -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 PAA08756 for ; Mon, 10 Jul 2000 15:13:59 -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:2.21) with ESMTP id PAA03892 for ; Mon, 10 Jul 2000 15:12:43 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA24694; Mon, 10 Jul 2000 15:12:42 -0400 (EDT) Date: Mon, 10 Jul 2000 15:12:42 -0400 (EDT) Message-Id: <200007101912.PAA24694@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <20000710121733.A1526@localhost> References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> <20000710100130.A1022@localhost> <200007101649.MAA20103@soggy-fibers.ai.mit.edu> <20000710121733.A1526@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > On Mon, Jul 10, 2000 at 12:49:53PM -0400, Robert S. Thau wrote: > > Hmmm... a grammar quibble: I'd say the full phrase at issue is in: > > > > "requires ... with the authority of the copyright owner", > > > > whether "the authority of the copyright owner" is something the > > *technological measure* is supposed to require... which, if so, brings > > me back to yesterday's argument. > > What you wrote above nails it. If you've missed a subtle point, so have I. Alright then, to restart the argument briefly: there are plenty of processes --- CSS is one, MPEG decompression is another --- which are required to gain access to a movie on DVD. What we're interested in is which of these processes, if any, are "effective access control" as defined in 1201(a). Let's start with the reading that says the technological measure is required to check the authority of the copyright owner (like, for example, a set-top box receiving a pay-per-view movie from cable TV). On this reading, the technological measure must somehow distinguish between works which a viewer is authorized to access, and those which they aren't (in the PPV cable case, by decoding only the movies whose keys have been loaded into the set-top box by the cable operator). [This phrasing avoids the "you're an authorized viewer if you bought an authorized player" dodge, or tries to, by emphasizing that there are requirements on what the player must *do*.] On this reading, MPEG decompression doesn't count as effective access control, since it doesn't involve any such test. But CSS doesn't either --- a DVD player will unscramble the .VOBs on *any* CSS-formatted DVD, and does not attempt to distinguish in any way between DVDs which the viewer has been authorized to view, and those which they haven't. So, as far as I can see, this reading works for the good guys. But that's not the MPAA's reading. They say, near as I can tell, that if a particular process is required to gain access to a work, what the "authority of the copyright holder" language means is that they can authorize particular means of performing that process, and any *other* means of performing that process is unauthorized and, ipso facto presto chango, circumvention. On their reading, then, CSS is a process required to gain access to movies on DVD, and they haven't authorized DeCSS as a means of performing that process. So they win, at least on circumvention, and we need the RE safe harbors, or something like. But on their reading, as far as I can see, they could say the same thing about MPEG decompression, which is every bit as necessary as CSS decryption to render a DVD movie into viewable form. So their reading allows them to claim permanent patent-like control over any invention (any "process or treatment") which is required to access their works --- but the control they claim has none of the constitutionally mandated restrictions on patents (e.g., limited term). It also goes against the legislative history, which as I've argued voluminously shows that Congress went out of their way to *avoid* interpretations of the DMCA which would give copyright holders a patent-like monopoly over processes applied to their works. Comments? rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:17:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09143 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:17:16 -0400 Received: from dial70.roadrunner.com (sf-du70.cybermesa.com [209.12.75.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09140 for ; Mon, 10 Jul 2000 15:17:13 -0400 Received: (from paul@localhost) by dial70.roadrunner.com (8.8.7/8.8.7) id NAA01963 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 13:16:38 -0600 Date: Mon, 10 Jul 2000 13:16:37 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000710131636.A1828@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CBC@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CBC@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Jul 10, 2000 at 11:23:49AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 11:23:49AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Jeff Waller [mailto:jeff-w@mindspring.com] > ... > > So perhaps access of old meant physical access, (but maybe not) > > however, we can argue that it should mean digital access too. That > > is if you are granted physical access to copy of a > > copyrighted work (you > > possess it) then you are also given digital access to a copy of > > a copyrighted work. > > This would be well and good if it weren't for the Circuit > City Divx marketing methodology where possession of the > physical medium (physical access) did -not- automatically > grant viewing priviledges (data access). You had to pay > an additional "unlock" fee to see the movie again after > the initial viewing period was up. > > This (now defunct) technology is one that 1201 could be > applied to. If somebody came up w/ a program to let you > have access to the Divx movie w/o paying the fee, then > that would certainly be circumvention and prosecutable. > > But all of the foregoing ONLY applies because the terms > were given up front. You knew when you purchased the > physical medium what the deal was: limited viewing > period, additional fee required for further viewing. > > This is NOT the case w/ "standard" DVDs, where the only > terms are "for home use only". I think the case of Divx is a problem for the P's. The disks were not leased, they were sold. Viewing of the movies was pay-per-use (unless one paid the up front expensive fee). Now that Divx is being shutdown, central licensing is scheduled to go away in June of next year. Doesn't this constitute both "un-sale" of the disks, and "un-publication" of the copies? Ex post facto. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:24:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09240 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:24:33 -0400 Received: from dial70.roadrunner.com (sf-du70.cybermesa.com [209.12.75.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09237 for ; Mon, 10 Jul 2000 15:24:30 -0400 Received: (from paul@localhost) by dial70.roadrunner.com (8.8.7/8.8.7) id NAA01973 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 13:23:52 -0600 Date: Mon, 10 Jul 2000 13:23:51 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000710132351.B1828@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CBD@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CBD@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Jul 10, 2000 at 11:27:38AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 11:27:38AM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Paul Fenimore > ... > > You raise another point that I've been thinking about which is that > > the statute refers to "the work", when the legislator knew that at > > least some (if not all) "access controls" would employ cryptography. > > So as you note, we've got two things hanging about -- the plaintext > > and the ciphertext. Not one. > > In my construction, your access to the ciphertext equates to > my "physical access" and your access to the plain text equates > to my "access" (or "data access"). Right. But this implies that "ciphertext" != "the work". Yet in an infringement action, the court would doubtlessly find that industrial/Hong Kong duplicators of the ciphertext had make illegal copies of "the work". Now we've got two definitions of "the work" floating around in Title 17, which doesn't help the plaintiffs argue that the law or their reading of it is valid. I think this lead to the conclusion that either, 1. The P's are introducing two meanings for the same word (which is not cool), or 2. The statute is structurally flawed because there is no "the work". There are two things, and the statute fails to distinguish which it is referring to. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:25:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09257 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:25:00 -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 PAA09254 for ; Mon, 10 Jul 2000 15:24:57 -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:2.21) with ESMTP id PAA05329 for ; Mon, 10 Jul 2000 15:23:41 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA27287; Mon, 10 Jul 2000 15:23:39 -0400 (EDT) Date: Mon, 10 Jul 2000 15:23:39 -0400 (EDT) Message-Id: <200007101923.PAA27287@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <200007101912.PAA24694@soggy-fibers.ai.mit.edu> References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> <20000710100130.A1022@localhost> <200007101649.MAA20103@soggy-fibers.ai.mit.edu> <20000710121733.A1526@localhost> <200007101912.PAA24694@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: > Alright then, to restart the argument briefly: there are plenty of ^^^ restate. Yipes. Blurfl. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:28:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09408 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:28:26 -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 PAA09405 for ; Mon, 10 Jul 2000 15:28:26 -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:2.21) with ESMTP id PAA05773 for ; Mon, 10 Jul 2000 15:27:10 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA28170; Mon, 10 Jul 2000 15:27:09 -0400 (EDT) Date: Mon, 10 Jul 2000 15:27:09 -0400 (EDT) Message-Id: <200007101927.PAA28170@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case In-Reply-To: <3969FF52.A147AA41@mninter.net> References: <20000710162149.21284.qmail@web510.mail.yahoo.com> <3969FF52.A147AA41@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > The moment my computer loads the advertisements the first time, the > ad-commerce has taken place. Copyright owners are not granted the right > to control a copy of the work beyond that point. Specifically, they are > not granted the right to make ad-revenue every time someone wants to > access the work--once the consumer has made their payment (micro as it > is), they lose control of that copy of the work, copy bit or not. A possibly relevant analogy: In the Betamax case, which was praised in both houses during the DMCA debate, the Supreme Court said time shifting was legal, despite the possibility, which they were likely aware of, that some viewers might fast-forward through the ads... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:30:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09448 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:30:09 -0400 Received: from dial70.roadrunner.com (sf-du70.cybermesa.com [209.12.75.70]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA09445 for ; Mon, 10 Jul 2000 15:30:04 -0400 Received: (from paul@localhost) by dial70.roadrunner.com (8.8.7/8.8.7) id NAA02000 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 13:29:32 -0600 Date: Mon, 10 Jul 2000 13:29:31 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Message-ID: <20000710132930.A1990@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CBC@mail2.onetouch.com> <20000710131636.A1828@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000710131636.A1828@localhost>; from fenimore@roadrunner.com on Mon, Jul 10, 2000 at 01:16:37PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 01:16:37PM -0600, Paul Fenimore wrote: [ ... ] > I think the case of Divx is a problem for the P's. The disks > were not leased, they were sold. Viewing of the movies was > pay-per-use (unless one paid the up front expensive fee). Now > that Divx is being shutdown, central licensing is scheduled > to go away in June of next year. Doesn't this constitute both > "un-sale" of the disks, and "un-publication" of the copies? "Un-sale" is un-clear. I mean to say that people don't pay for a disk so they can have a polycarbonate coaster. They want the work on the coast..., oops I mean disk. "First-sale is preserved! You can resell all the blank books that you own. The ones that aren't blank, well, they might as well be when the MPAA is finished with copyright law. I'm sure people will pay fair market value for the ink and paper the book is made of. Just wash the ink out, and start over. Write your own book." Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 15:41:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA09576 for dvd-discuss-outgoing; Mon, 10 Jul 2000 15:41:09 -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 PAA09573 for ; Mon, 10 Jul 2000 15:41:08 -0400 Received: from ip197.bedford2.ma.pub-ip.psi.net ([38.32.10.197]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13BjPD-0005Jm-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 15:39:52 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Date: Mon, 10 Jul 2000 15:33:47 -0400 Message-ID: References: <5A8391CA2D9ED311AFAA080009D982B10B1CBD@mail2.onetouch.com> <20000710132351.B1828@localhost> In-Reply-To: <20000710132351.B1828@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 PAA09574 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 10 Jul 2000 13:23:51 -0600, Paul Fenimore wrote: >Right. But this implies that "ciphertext" != "the work". Yet in >an infringement action, the court would doubtlessly find that >industrial/Hong Kong duplicators of the ciphertext had make illegal >copies of "the work". Because the data is fixated, I think there is a case to be made that only the ciphertext is the work. (DVD player translation of these fixated bits is only one possible outcome. While MPAA approves of only one translation, we should be free to stream the encrypted bits backwards if so desired. This is akin to rappers scratching vinyl for effects.) Think of an LP. Is only the 33rpm version copyrighted? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 16:03:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09854 for dvd-discuss-outgoing; Mon, 10 Jul 2000 16:03:33 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09824 for ; Mon, 10 Jul 2000 16:03:25 -0400 Received: from hoth (user-2inib2b.dsl.mindspring.com [165.121.44.75]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA24520 for ; Mon, 10 Jul 2000 13:02:08 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 10 Jul 2000 13:02:03 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <20000710093919.A769@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, July 10, Paul Fenimore wrote: >On Sun, Jul 09, 2000 at 04:34:31PM -0700, Ken Arromdee wrote: >> On Sat, 8 Jul 2000, Paul Fenimore wrote: >> > In principle yes. But in the case of CSS, no. Make two scenarios, one >> > with a stolen DVD, one with a purchased DVD. Play them both in the >> > *same* DVD player. The DVD player does its thing regardless of the >> > theft-status of a disk. The player *can't* be conveying authorization, >> > regardless of what "access" means. >> >> Authorization by this reasoning happens only when multiple things happen. In >> the case of the stolen DVD, not all of the multiple things happen, so it's not >> authorized. >> >> What you've succeeded in proving is that the player can't be a sufficient >> condition to convey authorization, not that it can't be a necessary condition. > >True, it is more complicated. Adding a stolen player to make four states: >stolen-stolen, legit-stolen, stolen-legit, legit-legit completes the >technological picture, I think. All four get access to the work. I don't see where stealing a physical object comes into it. Just because a player can't tell the difference between a purchased disc and a disc that was stolen after purchase (since there is no difference) doesn't mean it can't authorize playback. A disc (stolen or not) has a set of keys that certify it as an authorized source. The player (stolen or not) has its key and CSS algorithm that certify it as an authorized player. The authentication process between the two is what authorizes playback. Playing a stolen disc is not illegal. Neither is playing a ripped file. Only ripping a file or distributing a ripped file is/may be illegal (depending on what you do with it after ripping it, and who you distribute it to). I don't believe that the point of sale can be where the authorization takes place. I can rent a disc, borrow a disc, buy a stolen disc, win a disc as prize, find a disc lying on the ground -- and in all cases legally play it. There is no transfer of authorization in all these cases from the original sale. It seems reasonable that the player must provide the authorization. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 16:07:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10021 for dvd-discuss-outgoing; Mon, 10 Jul 2000 16:07:49 -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 QAA10018 for ; Mon, 10 Jul 2000 16:07:46 -0400 Message-ID: <20000710200559.28469.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Mon, 10 Jul 2000 13:05:59 PDT Date: Mon, 10 Jul 2000 13:05:59 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Right, Act, and Means to Access - more on Authority Models 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 "Access" can mean one of three things: a right, an act, or a means. The nature of the right, act, or means is undefined by the statue other than in the context of technological protection measures (TPMs), where it includes descrambling and decryption. Generally, 1201(a) is concerned with "circumvention" which is defined as the act of access in spite of a TPM, when you do not have the right of access, refered to as the authority of the copyright holder. This is spelled out in 1201(a)(3)(A). Moreover, 1201(a)(2) provides three cases where the means for circumvention cannot be distributed. It should be noted that not all means of TPM circumvention are banned, just those that at minimum meet one of three conditions (and none of the exceptions): (A) Primarily designed or produced for the purpose of circumvention (B) Has only limited commercially significant purpose or use other than to circumvent (C) Marketed for use in circumventing a TPM All three refer to cirumvention, which is the act sans right of access. If the right to access exists, then the act of access is not circumvention and the three clauses will all fail. It simply is not enough to note that some descrambling is taking place - this descrambling must be without the authority of the copyright holder. The question of whether 1201(a)(2) applies turns squarely on at what point the right to access is secured. The plaintiffs in this case advance the following model of "authorization" -- The right to access exists when the following events occur together: (1) A purchased DVD is placed in a CSS compatible drive (2) A "licenced" player uses it's player key as the means of access to the disk key, which is used in turn to obtain the title key (3) The "licenced" player uses the title key to allow viewing The defense offers an alternative authorization model: (1) The right to access is granted when the DVD is purchased, in accordance with the principle of first sale With this model, the act of descrambling a DVD using DeCSS occurs with the authority of the copyright holder, and is not cirucumvention. There are several arguements that support the defense's authorization model over the Plaintiff's: (1) The constitutional purpose of the copyright clause is to induce the release of works through financial reward. Jurisprudence has long recognized First Sale as the singular event that initiates and completes the quid-pro-quo. Rights are traditionally transfered at this event. (2) The Plaintiff's arrangement is not communicated on the DVD packaging. At minimum, the First Sale transfer is the default. (3) The Plaintiff's "for home viewing only" copyright notice abandoned any attempt to provide nuanced right of access criterion. All home viewing access is allowed. (4) The player licence explicitly deny that they authorize access. Again no communication of the Plaintiff's model occurs. (5) The Plaintiff's arrangement is a classic tying arrangement. It is not allowed under anti-trust law. The MPAA member movie studios have market power, and are clearly using it and their IP interest to force an unwanted product (the player licence) on a segment of consumers (open source advocates) who do not want it. (6) The dependence of the right on a "Second Sale" is a misuse of copyright that attempts to extend the copyright monopoly beyond its legitimate boundary by forcing the purchase of a product that is not covered by the copyright in question. (7) The copyright clause demands that the means for access not be protected under the umbrella of protection for the copyrighted work. Such means are not part of the "original work of authorship" within the meaning of the Copyright Clause. In analyzing the situation it is important to understand the nature of the new model for distributing copyrighted works that Congress had in mind. The internet and e-commerce create a commercial setting where encrypted works may be distributed first and consideration made later in return for access. However, this "new model" for online commerce of digital works is not applicable to DVD's. A DVD is distributed by the classical model where a tangible copy of the media is sold. It is critical to understand that Congress stated no intention to replace the doctrine of First Sale. The Constitution would frown on any attempt to do otherwise: the reward given to the author is of secondary importance to the inducement it serves to promote the release of works. The DMCA's progressive view is that technological protection measures can allow greater flexibility in e-commerce situations by protecting the delivery of encrypted content while separating it from the point of first sale. One sale occurs however, even in the "new model" for digital copyright commerce. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 16:15:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10181 for dvd-discuss-outgoing; Mon, 10 Jul 2000 16:15:12 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10178 for ; Mon, 10 Jul 2000 16:15:06 -0400 Received: from hoth (user-2inib2b.dsl.mindspring.com [165.121.44.75]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA28820 for ; Mon, 10 Jul 2000 13:13:49 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Mon, 10 Jul 2000 13:13:44 -0700 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 (9.0.2911.0) Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <8k8poh$m20$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Saturday, July 08, 2000, David A. Wagner wrote: >In article <396557E0.FE21CB41@mit.edu>, >Ravi Nanavati wrote: >> "First, keys necessary for the authorized playback of the >> encrypted content are stored in an area of the DVD disc >> which is not normally accessible or copyable when a >> recording of a disc is made. Accordingly, if a user were to >> make a bit for bit copy of a CSS encrypted disc, the copy >> would be encrypted and the device on which playback is >> attempted would not be able to access the keys needed to >> decrypt the content. Moreover, even if the content were >> somehow copied in decrypted form, an authorized player >> would be unable to access the keys necessary to play >> back the unauthorized copy of the disc." > >I don't know who wrote this, but it is simply wrong. No it's not. (No, I did not write it.) It's just a little vague. If a *user* employs a bit-for-bit copying program to copy a disc, they will copy all but the lead-in area. They will not be able to play the copy, since the keys will be missing. That's the point. It's correct. It's true that the last paragraph is wrong. If the content were copied in decrypted form, an authorized player would not be looking for keys, so it would have no problem playing the disc. >It's unfortunate when people get the technical facts wrong, and then >base their analysis on false premises. > >Maybe what the author was trying to say is that >1. You can't make bit-for-bit copies onto consumer-grade writeable discs; but >2. Pirates _can_ make a bit-for-bit copy by pressing a DVD the same way > manufacturers do, and when you make a bit-for-bit copy, the result is just > as good as the original. Making bit-for-bit copies does not require > decrypting in any way. >So, there's not much risk that the average man on the street will be churning >out bit-for-bit copies in his basement, but there is a very high risk that >copyright pirates will exploit bit-for-bit copying to sell pirated DVD's. All correct, and not in conflict with the original statement. Essentially a clarification of what "bit-for-bit" means for end users and what it means for pirates. Note that pirates can also get "pirate-grade" writable media that --with the proper equipment-- lets them make individual bit-for-bit copies that include the keys. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:02:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10791 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:02:39 -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 RAA10788 for ; Mon, 10 Jul 2000 17:02:38 -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:2.21) with ESMTP id RAA16285 for ; Mon, 10 Jul 2000 17:01:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA20567; Mon, 10 Jul 2000 17:01:20 -0400 (EDT) Date: Mon, 10 Jul 2000 17:01:20 -0400 (EDT) Message-Id: <200007102101.RAA20567@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <20000710093919.A769@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > I don't see where stealing a physical object comes into it. Just because a > player can't tell the difference between a purchased disc and a disc that > was stolen after purchase (since there is no difference) doesn't mean it > can't authorize playback. A disc (stolen or not) has a set of keys that > certify it as an authorized source. The player (stolen or not) has its key > and CSS algorithm that certify it as an authorized player. The > authentication process between the two is what authorizes playback. Playing > a stolen disc is not illegal. Neither is playing a ripped file. Only ripping > a file or distributing a ripped file is/may be illegal (depending on what > you do with it after ripping it, and who you distribute it to). Let's fill in the blanks in that argument a different way: A disc (stolen or not) has data with MPEG header blocks which certify it as an authorized MPEG-encoded disc. The player (stolen or not) has its codecs and MPEG decompression algorithm that certify it as an authorized player. The interaction between the two is an authorization process, and that is what authorizes playback. This is obviously nonsense. But why? Well, for one thing, you don't need the authority of the copyright owner to make an MPEG decoder, whereas, the MPAA claims, you do for CSS, because the cipher and the keys are their trade secret information. But that's not essential. We can easily imagine another compression algorithm --- let's call it MPEG-DPG (it's doubleplusgood!) --- whose details are trade secret to the MPAA. Building a player for MPEG-DPG disks would then require trade secret information (details of its data formats and codecs) just as building a player for CSS-formatted disks requires trade secret information (a few random numbers and a really bad cipher). Now, you seem to read the DMCA to say that what CSS does is an authorization check (because the player has to know the trade-secret numbers used as keys). But it seems to me that someone could just as easily say that what MPEG-DPG does is an authorization check (because the player has to know the various magic numbers embedded in the MPEG-DPG format specs) --- either way, the player has to demonstrate knowledge of MPAA trade secrets in order to access the work. Note that the DMCA definition of circumvention does not say that it *must* involve decryption or descrambling --- it can be bypassing any measure which "requires the authority of the copyright owner". And if MPEG-DPG decompression requires the authority of the copyright owner --- which can simply mean that the algorithm is trade secret, on the MPAA's reading of the law (that's what they say about CSS!) --- that means decompression without their authority is circumvention. And if that's right, then the copyright holders can use the DMCA to protect *any* process which is necessary to gain access to their work --- which (as I've argued a couple of times over the past few days) is a constitutionally problematic result, and which also conflicts with the clear intent of Congress as shown in the legislative record. Which are all reasons why I and Paul Fenimore have been arguing for an alternative reading of the statute --- which requires that DMCA protection is restricted to technological measures which perform some affirmative check that the *viewer* has "the authority of the copyright owner" to view a particular work, such as cable set-top boxes with pay-per-view support, or the old Circuit City Divx scheme. > I don't believe that the point of sale can be where the authorization takes > place. I can rent a disc, borrow a disc, buy a stolen disc, win a disc as > prize, find a disc lying on the ground -- and in all cases legally play it. > There is no transfer of authorization in all these cases from the original > sale. It seems reasonable that the player must provide the authorization. What you're saying here is that CSS does not perform any effective check as to whether or not you are authorized to view a particular DVD. Which is precisely why I have argued that it does *not* meet the 1201(a) definition of effective access control, at least on my own reading of the statute... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:04:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10856 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:04:21 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10850 for ; Mon, 10 Jul 2000 17:04:20 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA17105; Mon, 10 Jul 2000 17:03:29 -0400 Message-ID: <396A3A21.1BFECC27@mit.edu> Date: Mon, 10 Jul 2000 17:03:29 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <20000708111556.A553@localhost> <20000710093919.A769@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > > Authorization by this reasoning happens only when multiple things happen. In > > the case of the stolen DVD, not all of the multiple things happen, so it's not > > authorized. > > > > What you've succeeded in proving is that the player can't be a sufficient > > condition to convey authorization, not that it can't be a necessary condition. > > True, it is more complicated. Adding a stolen player to make four states: > stolen-stolen, legit-stolen, stolen-legit, legit-legit completes the > technological picture, I think. All four get access to the work. > Divx is an important counterexample here. With Divx, stolen players don't work (you don't have the Divx account that makes them work) and stolen disks don't work (if it doesn't play in a friend's player [a common complaint with Divx], its not going to play in a thief's player). This means that only one of the four cases work for Divx, legit-legit. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:07:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10936 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:07:00 -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 RAA10932 for ; Mon, 10 Jul 2000 17:06:59 -0400 Message-ID: <20000710210513.6275.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Mon, 10 Jul 2000 14:05:13 PDT Date: Mon, 10 Jul 2000 14:05:13 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Streambox 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 --- Chris Moseng wrote: > The moment my computer loads the advertisements the first time, the > ad-commerce has taken place. Copyright owners are not granted the > right to control a copy of the work beyond that point. I disagree with both of these statements. Ad-commerce continues *every* time you repeat your access to the work and it need not be the only way that the author makes money. You never get to say "ok, I've seen enough ads that I can make and keep a copy". This is sort of like you saying that because you entered a theater and saw the slide-show ads and trailers that you can use your cam-corder. In fact, you don't even get free admission to watch the exact same thing a second time. Think of the realplayer as a movie theater with free admission. > Specifically, they are not granted the right to make ad-revenue > every time someone wants to access the work--once the consumer > has made their payment (micro as it is), they lose control of > that copy of the work, copy bit or not. In fact, they are and have exercised this throughout history, pre-dating the DMCA. In order to avoid the ads, you at least have to be the owner of a copy. You have no case if you say that because it was viewed on your computer that you became the owner of a copy. > > Well, the burden would be on you to prove a claim of fair use. The > > copy-bit communicates the author's statement "No permission from > > me". > The author has no authority to back that statement, certainly not > from copyright. I don't understand what you mean. The burden is on you, not the copyright owner. He doesn't need to "back" it. He just says "Here's my copyright registration, here's their copy, I didn't authorize it." The judge will engage in fact finding to determine if these claims are true by looking at the evidence. An affidavit from the copyright holder will carry the point even without notice of the copy-bit, but that would be an extra nail in the coffin. Those three factual findings will win the case unless you meet the burden of a fair use defense, which as I've argued is probably doomed by design. > Keep in mind that losing on individual points is not a loss, just a > consideration. Fair Use is not restricted to Factual-class works, for > instance. Each of those tests is a consideration, not a deal breaker. > If they were, the guidline would not balance the public interest. Fair use is easier to get for factual-class works, but it's not a requirement -- it's factor 2 in the calculus. Certainly examples exist of fair use holding for purely creative works (eg. the 2-live-crew case) and failing for scientific works (Texaco case). __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:14:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11245 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:14:53 -0400 Received: from dial218.roadrunner.com (sf-du218.cybermesa.com [209.12.75.218]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11242 for ; Mon, 10 Jul 2000 17:14:44 -0400 Received: (from paul@localhost) by dial218.roadrunner.com (8.8.7/8.8.7) id PAA02446 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 15:14:09 -0600 Date: Mon, 10 Jul 2000 15:14:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Right, Act, and Means to Access - more on Authority Models Message-ID: <20000710151407.A2309@localhost> References: <20000710200559.28469.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000710200559.28469.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Jul 10, 2000 at 01:05:59PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thank you Bryan. I've got a comment and some additions. On Mon, Jul 10, 2000 at 01:05:59PM -0700, Bryan Taylor wrote: > "Access" can mean one of three things: a right, an act, or a means. > The nature of the right, act, or means is undefined by the statue > other than in the context of technological protection measures > (TPMs), where it includes descrambling and decryption. No matter what, "access" is *un*defined by the statute. A circular reference is never a definition. Depending on what definition of "access" one takes as operative in the statute (to resolve the circular dependence) one of three sets of problems arises with the P's suit. 1. Commercial access. This should void the law suit because CSS is not controlling access. 2.a. Access is the state of "having" the plaintext. Then fair use is clearly relevant, and the P's have to explain why 1201(b) rights control exists as a separate section, etc. I believe this def'n or the one below is necessary to conclude that CSS is "prophylactic". 2.b. Access is the same as the process mentioned in (a)(3)(B). This def'n, because one never gets to use, allows the P's to claim that fair use is irrelevant. However, two words have been read to mean one thing. > Generally, 1201(a) is concerned with "circumvention" which is > defined as the act of access in spite of a TPM, when you do not > have the right of access, refered to as the authority of the > copyright holder. This is spelled out in 1201(a)(3)(A). There is a subtle point here, which is that (a)(3)(A) does not say that "access" is an act. It defines "circumvent a technological measure" without saying that this is also the act of access. I don't think this is hair-splitting in the following reason: a. The copyright owner distributes an encrypted work gratis and without condition. The copyright owner does not distributed keys (i.e. RSA challenge). b. The user cracks the crypto, and reads the disk. Reading (a)(3)(A) leads me think that this is an act of circumvention. I also think "access" occurred when the copyright owner freely distributed the disks. Because the crypto would fail the test in (a)(3)(B) using the commercial-access def'n, there is no possible violation of (a)(1)(A). c. One has met the (a)(3)(A) test of circumvention of a technological measure, but failed the (a)(3)(B) test of whether the measure is effective. I should note that one may claim that the decryption above is done with the authority of the copyright owner, but this runs into problems with (a)(3)(B) because if transmitting a crypto key isn't relevant to "requires the application of information, or a process ... with the authority of the copyright owner" I'm not sure what the word "requires" is doing in (a)(3)(B). > Moreover, 1201(a)(2) provides three cases where the means for > circumvention cannot be distributed. It should be noted that not > all means of TPM circumvention are banned, just those that at > minimum meet one of three conditions (and none of the exceptions): > > (A) Primarily designed or produced for the purpose of circumvention > (B) Has only limited commercially significant purpose or use other > than to circumvent > (C) Marketed for use in circumventing a TPM > > All three refer to cirumvention, which is the act sans right of > access. If the right to access exists, then the act of access is > not circumvention and the three clauses will all fail. It simply > is not enough to note that some descrambling is taking place - this > descrambling must be without the authority of the copyright holder. > > The question of whether 1201(a)(2) applies turns squarely on at what > point the right to access is secured. > > The plaintiffs in this case advance the following model of > "authorization" -- The right to access exists when the following > events occur together: > (1) A purchased DVD is placed in a CSS compatible drive > (2) A "licenced" player uses it's player key as the means of access > to the disk key, which is used in turn to obtain the title key > (3) The "licenced" player uses the title key to allow viewing > > The defense offers an alternative authorization model: > (1) The right to access is granted when the DVD is purchased, in > accordance with the principle of first sale > > With this model, the act of descrambling a DVD using DeCSS occurs > with the authority of the copyright holder, and is not > cirucumvention. > > There are several arguements that support the defense's > authorization model over the Plaintiff's: > > (1) The constitutional purpose of the copyright clause is to induce > the release of works through financial reward. Jurisprudence has > long recognized First Sale as the singular event that initiates and > completes the quid-pro-quo. Rights are traditionally transfered at > this event. > > (2) The Plaintiff's arrangement is not communicated on the DVD > packaging. At minimum, the First Sale transfer is the default. > > (3) The Plaintiff's "for home viewing only" copyright notice > abandoned any attempt to provide nuanced right of access criterion. > All home viewing access is allowed. > > (4) The player licence explicitly deny that they authorize access. > Again no communication of the Plaintiff's model occurs. > > (5) The Plaintiff's arrangement is a classic tying arrangement. It > is not allowed under anti-trust law. The MPAA member movie studios > have market power, and are clearly using it and their IP interest > to force an unwanted product (the player licence) on a segment of > consumers (open source advocates) who do not want it. > > (6) The dependence of the right on a "Second Sale" is a misuse of > copyright that attempts to extend the copyright monopoly beyond > its legitimate boundary by forcing the purchase of a product that > is not covered by the copyright in question. > > (7) The copyright clause demands that the means for access not be > protected under the umbrella of protection for the copyrighted work. > Such means are not part of the "original work of authorship" within the > meaning of the Copyright Clause. (8) Using the P's implied def'n of "access", it matters whether "the work" refers to the ciphertext or the plaintext. If "access" is a commercial transaction (or gratis), rather than a bunch of crypto operations per se, I don't think it matters whether the work is referring to the ciphertext or plaintext. In either case (plain or cipher text) the crypto has rendered the work unintelligible, and consequently protected the copyright owner's interest in commerce. > In analyzing the situation it is important to understand the nature > of the new model for distributing copyrighted works that Congress > had in mind. The internet and e-commerce create a commercial setting > where encrypted works may be distributed first and consideration > made later in return for access. However, this "new model" for online > commerce of digital works is not applicable to DVD's. A DVD is > distributed by the classical model where a tangible copy of the media > is sold. > > It is critical to understand that Congress stated no intention to > replace the doctrine of First Sale. The Constitution would frown on any > attempt to do otherwise: the reward given to the author is of secondary > importance to the inducement it serves to promote the release of works. > The DMCA's progressive view is that technological protection measures > can allow greater flexibility in e-commerce situations by > protecting the delivery of encrypted content while separating it > from the point of first sale. One sale occurs however, even in the "new > model" for digital copyright commerce. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:25:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11493 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:25:39 -0400 Received: from dial218.roadrunner.com (sf-du218.cybermesa.com [209.12.75.218]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11490 for ; Mon, 10 Jul 2000 17:25:37 -0400 Received: (from paul@localhost) by dial218.roadrunner.com (8.8.7/8.8.7) id PAA02455 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 15:25:07 -0600 Date: Mon, 10 Jul 2000 15:25:06 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available Message-ID: <20000710152506.B2309@localhost> References: <8k8poh$m20$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Mon, Jul 10, 2000 at 01:13:44PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 01:13:44PM -0700, Jim Taylor wrote: > On Saturday, July 08, 2000, David A. Wagner wrote: > >In article <396557E0.FE21CB41@mit.edu>, > >Ravi Nanavati wrote: > >> "First, keys necessary for the authorized playback of the > >> encrypted content are stored in an area of the DVD disc > >> which is not normally accessible or copyable when a > >> recording of a disc is made. Accordingly, if a user were to > >> make a bit for bit copy of a CSS encrypted disc, the copy > >> would be encrypted and the device on which playback is > >> attempted would not be able to access the keys needed to > >> decrypt the content. Moreover, even if the content were > >> somehow copied in decrypted form, an authorized player > >> would be unable to access the keys necessary to play > >> back the unauthorized copy of the disc." > > > >I don't know who wrote this, but it is simply wrong. > > No it's not. (No, I did not write it.) It's just a little vague. If a *user* > employs a bit-for-bit copying program to copy a disc, they will copy all but > the lead-in area. They will not be able to play the copy, since the keys > will be missing. That's the point. It's correct. But this is a media-specific claim. For the sake of argument, let's take the P's claim that "internet transmission is viable" is correct. Transmit a disk image electronically. This is playable using a drive emulator and the disk image. (I'm not saying an appropriate drive emulator exists). All the claimed "piracy control" features of CSS stem from the licensing agreements that dictate the way in which a player will operate. The control features are not a result of CSS as a crypto system. (N.B. open design of DVD-Video players could allow one to retrieve the disk-key block from someplace other than the disk.) I think the media-specific claims are very suspect -- they assume that the copyright owners will exert some control over the player and/or media markets. Those things are not result of technical design, they are a result of licensing. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 17:39:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11605 for dvd-discuss-outgoing; Mon, 10 Jul 2000 17:39:29 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11601 for ; Mon, 10 Jul 2000 17:39:28 -0400 Received: from 207-172-126-196.s577.tnt5.lnhva.md.dialup.rcn.com ([207.172.126.196] helo=yuggoth) by smtp02.mrf.mail.rcn.net with smtp (Exim 2.12 #3) id 13BlFg-0001w0-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 17:38:09 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Date: Mon, 10 Jul 2000 17:26:57 -0400 X-Mailer: KMail [version 1.0.24] Content-Type: text/plain References: <396A3A21.1BFECC27@mit.edu> MIME-Version: 1.0 Message-Id: <00071017362800.05476@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 10 Jul 2000, you wrote: > Divx is an important counterexample here. With Divx, stolen players > don't work (you don't have the Divx account that makes them work) and > stolen disks don't work (if it doesn't play in a friend's player > [a common complaint with Divx], its not going to play in a thief's > player). This means that only one of the four cases work for Divx, > legit-legit. What an irornic turn of events: 1. DVD introduced 2. Divx introduced 3. Some companies, persuaded by lawyers for DiVX that DVD is too insecure, anounce that they will be supporting DiVX instead of DVD 4. Purists, who like the goodies associated with DVD (widescreen, documentary features), privacy advocates who hate the idea of a central computer recoding video habits, and environmental activists who hate the idea of discarded disc filling up landfills all gang up on DiVX 5. DiVX dies, increasing industry support for DVD 6. CSS is cracked, demonstrating that Circuit City's claims about piracy may have been correct. 7. Lawsuits are filed, and the dvd-discuss group, in promulgating the first sale doctrine, argues that DiVX had a better claim to Chapter 12 protection. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 18:01:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA11810 for dvd-discuss-outgoing; Mon, 10 Jul 2000 18:01:43 -0400 Received: from dial250.roadrunner.com (sf-du250.cybermesa.com [209.12.75.250]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA11807 for ; Mon, 10 Jul 2000 18:01:39 -0400 Received: (from paul@localhost) by dial250.roadrunner.com (8.8.7/8.8.7) id QAA02888 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 16:01:10 -0600 Date: Mon, 10 Jul 2000 16:01:09 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000710160108.A2754@localhost> References: <396A3A21.1BFECC27@mit.edu> <00071017362800.05476@yuggoth> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00071017362800.05476@yuggoth>; from jeremy@osf1.gmu.edu on Mon, Jul 10, 2000 at 05:26:57PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 05:26:57PM -0400, Jeremy Erwin wrote: > On Mon, 10 Jul 2000, you wrote: > > Divx is an important counterexample here. With Divx, stolen players > > don't work (you don't have the Divx account that makes them work) and > > stolen disks don't work (if it doesn't play in a friend's player > > [a common complaint with Divx], its not going to play in a thief's > > player). This means that only one of the four cases work for Divx, > > legit-legit. > > What an irornic turn of events: > > 1. DVD introduced > 2. Divx introduced > 3. Some companies, persuaded by lawyers for DiVX that DVD is too insecure, > anounce that they will be supporting DiVX instead of DVD > 4. Purists, who like the goodies associated with DVD (widescreen, documentary > features), privacy advocates who hate the idea of a central computer recoding > video habits, and environmental activists who hate the idea of discarded disc > filling up landfills all gang up on DiVX > 5. DiVX dies, increasing industry support for DVD > 6. CSS is cracked, demonstrating that Circuit City's claims about piracy may > have been correct. > 7. Lawsuits are filed, and the dvd-discuss group, in promulgating the first > sale doctrine, argues that DiVX had a better claim to Chapter 12 protection. I for one do not advocate number 7 above. I may have said that I don't think Divx has a broken-beyond-repair authorization mechanism, but that doesn't mean that I think (a)(3)(B), the definition of effectively, applies. I think Divx was an abuse of 1201(a) on somewhat different ground than CSS is an abuse of 1201(a). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 18:47:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12300 for dvd-discuss-outgoing; Mon, 10 Jul 2000 18:47:19 -0400 Received: from mail.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA12297 for ; Mon, 10 Jul 2000 18:47:18 -0400 Received: from [216.27.56.74] (helo=mindspring.com ident=jeffw) by mail.ivc.com with esmtp (Exim 3.15 #1) id 13BmJO-0002JB-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 18:46:02 -0400 Message-ID: <396A51E4.648EB2AC@mindspring.com> Date: Mon, 10 Jul 2000 18:44:52 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens 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 sam th wrote: > -----BEGIN PGP SIGNED MESSAGE----- > Hash: SHA1 > > On Fri, 7 Jul 2000, Jeff Waller wrote: > > > sam th wrote: > > > > > > > > > > > (3) Does the tying arrangement force purchases that would not otherwise be > > > made? > > > Yes. Some of us might want to get our DVD players from people other than > > > those authorized by the DVDCCA. > > > > One thing that bothers me is what are the other players *avaliable right now* > > or indeed avaliable back in October that consumers are being denied > > access? Perhaps none. What DVD-CCA and the MPAA have in effect > > eliminated the competition before the fact. > > First, the MPAA is attempting to deny access to DeCSS (actually, all > non-approved DVD players). That may be, but DeCSS is not a DVD player. I know of no non-authorized players. > > > Second, I cannot believe that the abscence of other players would legalize > otherwise blatantly illegal acts. An agreement can be in "restraint of > trade" even if the parties have no competition. In fact, the DVDCCA is > *designed* not to have competition. Their success at this should not make > it legal. > > Yea but I'm saying that fits test 4, not 3. I'm thinking that test 3 fits the following scenario: Company A is in competition with companies B,C,D. Companies A-D are manufacturers of players of disks made by company X. Company X decides that only players made by company A are ok. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 18:59:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12526 for dvd-discuss-outgoing; Mon, 10 Jul 2000 18:59:09 -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 SAA12523 for ; Mon, 10 Jul 2000 18:59:08 -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 SAA06191 for ; Mon, 10 Jul 2000 18:57:53 -0400 (EDT) Message-Id: <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Mon, 10 Jul 2000 18:57:49 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:14 PM 7/8/00 -0700, David A. Wagner wrote: >One important difference between `implementing CSS' and `circumventing >CSS' comes in when you consider whether you've got the authority of the >copyright holder. > >If "DVD players bought at Circuit City" were ruled to be implementing >CSS with the authority of the copyright holder, but DeCSS was ruled >to be implementing CSS without the authority of the copyright holder, >there might be an argument that DeCSS is circumventing CSS. > >Of course, I see no reason to believe that DVD players bought at Circuit >City have authority from the copyright holder any more than DeCSS does, >but that seems to be one of the distinctions the law requires. > >Please note that I am using the word `circumvention' in the legal >1201(a)-sense, not in the technical sense of the word. Which, along with many other recent messages, raises the point that it's important to stress to Kaplan that "circumvention" per 1201 is a legal conclusion, not a technical description. "Circumvention" describes neither the act of getting around CSS nor the act of working with it. Plaintiffs must go through the entire authority analysis to show that CSS is a "technological measure" meriting 1201 backing, then show that DeCSS operates in a legally distinct manner, before anyone could find that DeCSS circumvents. The source of "authorization," if that's the distinction, has to be intelligible to the end-user. Otherwise, as I think Rob Thau points out elsewhere, the the vagueness of the authorization model would be a fatal flaw in the law itself, leaving key terms open to later definition. (Indeed, even allowing publishers to decide before sales what authorization method they will demand that the law enforce looks like an unconstitutional delegation of authority unless 1201 sufficiently restricts their choices.) Authorization is not intelligible if plaintiffs say it rests with the player. The players themselves disclaim conveyance of any rights and the DVDs make no claim that play is authorized only on specially-marked players with their bundled software. --Wendy (reasonable, or conflating the (a)(1) end-user and the (a)(2) "trafficker"?) Plaintiffs want to say, as Dean Marks candidly stated in the Stanford hearings, that the only player that operates "with the authority of the copyright owner" is one that does not permit capture of an unencrypted data stream. Is it possible that by trying to combine 1201(a) and 1201(b) controls in one mechanism, they fail at both? 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 Mon Jul 10 19:14:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12703 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:14:35 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA12700 for ; Mon, 10 Jul 2000 19:14:34 -0400 Received: from 216-164-136-27.s27.tnt4.lnhva.md.dialup.rcn.com ([216.164.136.27] helo=[216.164.133.55]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 13Bmjm-0006Yl-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 19:13:19 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <396A51E4.648EB2AC@mindspring.com> References: <396A51E4.648EB2AC@mindspring.com> Date: Mon, 10 Jul 2000 19:11:12 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] Why I love Justice Stevens 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 Jeff Waller wrote: >sam th wrote: > > > First, the MPAA is attempting to deny access to DeCSS (actually, all > > non-approved DVD players). > >That may be, but DeCSS is not a DVD player. I know of no non-authorized >players. livid's oms comes to mind. See www.linuxvideo.org. Although the original injunction/lawsuit was directed against the distribution of DeCSS, later documents filed by the MPAA indicate that all programs that perform similar procedures fulfil the MPAA's definition of DeCSS. oms is unlicensed by the DVDCCA, and because of its open source nature, could easily be extended to perform DeCSS like functions. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 19:35:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12859 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:35:55 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA12856 for ; Mon, 10 Jul 2000 19:35:54 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id SAA03814 for ; Mon, 10 Jul 2000 18:34:21 -0500 Message-Id: <200007102334.SAA03814@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: Re: [dvd-discuss] Streambox case Date: Mon, 10 Jul 100 23:34:22 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan said: > This is sort of like you saying > that because you entered a theater and saw the slide-show ads and > trailers that you can use your cam-corder. In fact, you don't even get > free admission to watch the exact same thing a second time. Think of > the realplayer as a movie theater with free admission. To be frank, this is baloney. Your anaolgy is pure misdirection, and I would hope you know why. Robert Thau's invocation of Betamax is a pretty good refutation of your position, so I'll just add a few things. I don't want to go around and around on this, because I think it's pretty clear you're mistaken. Copyright holders have not been granted by copyright or 1201 the right to hinder all non-infringing use a priori just because infringing uses are possible. If you don't want people to make use of your work, you don't publish. If you do publish, people have the right to make non-infringing use without your input or prior restraint as a copyright holder. I can walk into a movie theater, having paid, close my eyes and ears until the movie starts, and still watch the movie. Heck, even using a camcorder in a movie theater isn't *necessarily* illegal, and it shouldn't be hindered a priori. In the end, there is no bookstore, there is no movie theater, and there are no "requirements" to justify access to the work aside from the strictly technological limitation that Real Audio is the only software that will play back the file. If someone were out on the street shouting in a foriegn language, I have just as much a right to use my own translator as the one they insist on selling to me, regardless of their financial connection to that player. Publish and accept the rights and limitations of copyright, or keep it to yourself. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 19:36:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA12891 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:36:36 -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 TAA12885 for ; Mon, 10 Jul 2000 19:36:34 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C16G>; Mon, 10 Jul 2000 16:35:23 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 10 Jul 2000 16:35:14 -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: Jeremy Erwin [mailto:jeremy@osf1.gmu.edu] > Sent: Monday, July 10, 2000 2:27 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > On Mon, 10 Jul 2000, you wrote: > > Divx is an important counterexample here. With Divx, stolen players > > don't work (you don't have the Divx account that makes them > work) and > > stolen disks don't work (if it doesn't play in a friend's player > > [a common complaint with Divx], its not going to play in a thief's > > player). This means that only one of the four cases work for Divx, > > legit-legit. > > What an irornic turn of events: > > 1. DVD introduced > 2. Divx introduced > 3. Some companies, persuaded by lawyers for DiVX that DVD is > too insecure, > anounce that they will be supporting DiVX instead of DVD > 4. Purists, who like the goodies associated with DVD > (widescreen, documentary > features), privacy advocates who hate the idea of a central > computer recoding > video habits, and environmental activists who hate the idea > of discarded disc > filling up landfills all gang up on DiVX > 5. DiVX dies, increasing industry support for DVD > 6. CSS is cracked, demonstrating that Circuit City's claims > about piracy may > have been correct. > 7. Lawsuits are filed, and the dvd-discuss group, in > promulgating the first > sale doctrine, argues that DiVX had a better claim to Chapter > 12 protection. > It -did- have better claim to 1201 protection ... but it -didn't- perform well in the marketplace (primarily due to those privacy issues as far as I can tell) So what's your point? -- -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 Jul 10 19:45:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA13176 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:45:56 -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 TAA13173 for ; Mon, 10 Jul 2000 19:45:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C17H>; Mon, 10 Jul 2000 16:44:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention and authority Date: Mon, 10 Jul 2000 16:44:42 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Friday, July 07, 2000 11:18 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Circumvention and authority > > > > Ok, here you're losing it again. "Authority" is indeed > > relevant ... authority to access the work is -always- the > > relevant issue. What is -not- relevant is whether a > > particular player is "authorized". It is the -act- that > > is in question. > > As you may guess, I disagree. The copyright owner can feel free to > authorize however and whatever they see fit. 1201 provides no > limitation > (strictly speaking, unless we have our way) on what terms > that contract > may authorize access. It could be by access devices. It could be by > uses. It could be by your hair color. It could be at random. True enough ... however for any such restrictions to be valid, they must be communicated to the user. That is, if you don't want red-haired people to access your work, but you don't tell anybody about this restriction you can't expect to successfully prosecute Seamus O'Malley for his unauthorized access. > The KEY is whether or not those limitations on authorization are > supported by existing copyright privleges, whether they are legal, and > whether those bound by the limitations agreed to them or knew > of them at > the time they were sold the good. Yes, that last one is the important one here. Which is why I was saying that the player was not relevant. I was glossing over a point that should have been explicitly stated. Other than that, I think we agree. -- -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 Jul 10 19:47:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA13257 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:47:56 -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 TAA13254 for ; Mon, 10 Jul 2000 19:47:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C17K>; Mon, 10 Jul 2000 16:46:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention and authority Date: Mon, 10 Jul 2000 16:46:37 -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: Chris Moseng [mailto:moseng@m ... > However, I do feel, and see with my own eyes in MPAA testimony, that a > confluence of events can satisfy a copyright owner's requirements for > authorization. As long as the events are rigidly defined, the > copyright > owner's authority can have meaning and effect. So a person, when > subjected to or participating in the proper confluence of events, is > granted or denied authorization. > > Too bad for them they never told anybody about it. They couldn't tell anybody about it because that would lead to an illegal tying case against 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 Mon Jul 10 19:49:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA13302 for dvd-discuss-outgoing; Mon, 10 Jul 2000 19:49:59 -0400 Received: from mail.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA13299 for ; Mon, 10 Jul 2000 19:49:58 -0400 Received: from [216.27.56.74] (helo=mindspring.com ident=jeffw) by mail.ivc.com with esmtp (Exim 3.15 #1) id 13BnI2-0002R7-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 19:48:42 -0400 Message-ID: <396A6095.BEDBDCB5@mindspring.com> Date: Mon, 10 Jul 2000 19:47:33 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens References: <396A51E4.648EB2AC@mindspring.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 Jeremy Erwin wrote: > Jeff Waller wrote: > >sam th wrote: > > > > > First, the MPAA is attempting to deny access to DeCSS (actually, all > > > non-approved DVD players). > > > >That may be, but DeCSS is not a DVD player. I know of no non-authorized > >players. > > livid's oms comes to mind. See www.linuxvideo.org. Although the > original injunction/lawsuit was directed against the distribution of > DeCSS, later documents filed by the MPAA indicate that all programs > that perform similar procedures fulfil the MPAA's definition of DeCSS. Really? I didn't know they had come so far along. The last time I checked, the Livid player still wasn't functional. > > > oms is unlicensed by the DVDCCA, and because of its open source > nature, could easily be extended to perform DeCSS like functions. > From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 20:01:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13387 for dvd-discuss-outgoing; Mon, 10 Jul 2000 20:01:55 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA13384 for ; Mon, 10 Jul 2000 20:01:53 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13BnTZ-0001qP-00; Mon, 10 Jul 2000 17:00:37 -0700 Date: Mon, 10 Jul 2000 17:00:37 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens Message-ID: <20000710170037.B9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <396A51E4.648EB2AC@mindspring.com> <396A6095.BEDBDCB5@mindspring.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <396A6095.BEDBDCB5@mindspring.com>; from jeff-w@mindspring.com on Mon, Jul 10, 2000 at 07:47:33PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeff Waller writes: > Jeremy Erwin wrote: > > > Jeff Waller wrote: > > >sam th wrote: > > > > > > > First, the MPAA is attempting to deny access to DeCSS (actually, all > > > > non-approved DVD players). > > > > > >That may be, but DeCSS is not a DVD player. I know of no non-authorized > > >players. > > > > livid's oms comes to mind. See www.linuxvideo.org. Although the > > original injunction/lawsuit was directed against the distribution of > > DeCSS, later documents filed by the MPAA indicate that all programs > > that perform similar procedures fulfil the MPAA's definition of DeCSS. > > Really? I didn't know they had come so far along. The last time I checked, > > the Livid player still wasn't functional. The LiViD player works well, although it has some rough edges. I saw a demonstration recently with a laptop playing a DVD, relying only on open source software. (This feat would ultimately not have been possible without information like that expressed in DeCSS, etc., etc.) Matthew Pavlovich showed off LiViD's work at LinuxWorld Conference and Expo in New York City a few months ago. I wasn't there, but many of my friends and co-workers were _very_ enthusiastic about what they saw. -- 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 Jul 10 20:38:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13544 for dvd-discuss-outgoing; Mon, 10 Jul 2000 20:38:41 -0400 Received: from dial186.roadrunner.com (sf-du186.cybermesa.com [209.12.75.186]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA13539 for ; Mon, 10 Jul 2000 20:38:32 -0400 Received: (from paul@localhost) by dial186.roadrunner.com (8.8.7/8.8.7) id SAA03532 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 18:38:01 -0600 Date: Mon, 10 Jul 2000 18:38:00 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Message-ID: <20000710183800.A3377@localhost> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000710114628.00a93980@pop.bellatlantic.net>; from wendy@seltzer.com on Mon, Jul 10, 2000 at 06:57:49PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 06:57:49PM -0400, Wendy Seltzer wrote: > At 07:14 PM 7/8/00 -0700, David A. Wagner wrote: > >One important difference between `implementing CSS' and `circumventing > >CSS' comes in when you consider whether you've got the authority of the > >copyright holder. > > > >If "DVD players bought at Circuit City" were ruled to be implementing > >CSS with the authority of the copyright holder, but DeCSS was ruled > >to be implementing CSS without the authority of the copyright holder, > >there might be an argument that DeCSS is circumventing CSS. > > > >Of course, I see no reason to believe that DVD players bought at Circuit > >City have authority from the copyright holder any more than DeCSS does, > >but that seems to be one of the distinctions the law requires. > > > >Please note that I am using the word `circumvention' in the legal > >1201(a)-sense, not in the technical sense of the word. > > Which, along with many other recent messages, raises the point that it's > important to stress to Kaplan that "circumvention" per 1201 is a legal > conclusion, not a technical description. "Circumvention" describes > neither the act of getting around CSS nor the act of working with > it. Plaintiffs must go through the entire authority analysis to show that > CSS is a "technological measure" meriting 1201 backing, then show that > DeCSS operates in a legally distinct manner, before anyone could find that > DeCSS circumvents. > > The source of "authorization," if that's the distinction, has to be > intelligible to the end-user. Otherwise, as I think Rob Thau points out > elsewhere, the the vagueness of the authorization model would be a fatal > flaw in the law itself, leaving key terms open to later > definition. (Indeed, even allowing publishers to decide before sales what > authorization method they will demand that the law enforce looks like an > unconstitutional delegation of authority unless 1201 sufficiently restricts > their choices.) For instance Divx should be an illegal attempt to control access. If Divx is covered by the statute, then the statute is an constitutional Great Wall of China around all use. A wall that one may cross only with the case-by-case permission of the copyright owner. Does 1201(a) forbid "cracking" Divx after the June 2001 close of central licensing? If so, it allows the un-publication of those Divx copies of the work. > Authorization is not intelligible if plaintiffs say it rests with the > player. The players themselves disclaim conveyance of any rights and the > DVDs make no claim that play is authorized only on specially-marked players > with their bundled software. > > --Wendy > (reasonable, or conflating the (a)(1) end-user and the (a)(2) "trafficker"?) > > Plaintiffs want to say, as Dean Marks candidly stated in the Stanford > hearings, that the only player that operates "with the authority of the > copyright owner" is one that does not permit capture of an unencrypted data > stream. Is it possible that by trying to combine 1201(a) and 1201(b) > controls in one mechanism, they fail at both? Capture of the encrypted data stream is no different from capture of the decrypted data stream from the point of view of copying. They only differ by decryption/descrambling --- i.e. control of the player market. Both digital data streams have the property of very small generational loss. (a) and (b) can't be combined. (a) operates with "authority", (b) operates "merely" in the normal course of operation. Copying can occur before or after the process of decryption. (a)-access isn't related to copy control, it is simply irrelevant. A (b)-measure which employed the same "process" as (a)(3)(B) to control descrambling of the ciphertext would look very much like a back-door attempt to regulate each and every use of the plaintext. [Incidentally, I think 1201(b) is inherently patent-like control of the player market. Unlike access control, copy control can only be achieved by crippling player and recording devices.] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 20:41:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA13641 for dvd-discuss-outgoing; Mon, 10 Jul 2000 20:41:27 -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 UAA13638 for ; Mon, 10 Jul 2000 20:41:26 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C10C>; Mon, 10 Jul 2000 17:40:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Mon, 10 Jul 2000 17:40:15 -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: Monday, July 10, 2000 12:24 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "authority" > > > On Mon, Jul 10, 2000 at 11:27:38AM -0700, Richard Hartman wrote: > > > > > > > -----Original Message----- > > > From: Paul Fenimore > > ... > > > You raise another point that I've been thinking about > which is that > > > the statute refers to "the work", when the legislator knew that at > > > least some (if not all) "access controls" would employ > cryptography. > > > So as you note, we've got two things hanging about -- the > plaintext > > > and the ciphertext. Not one. > > > > In my construction, your access to the ciphertext equates to > > my "physical access" and your access to the plain text equates > > to my "access" (or "data access"). > > Right. But this implies that "ciphertext" != "the work". Yet in > an infringement action, the court would doubtlessly find that > industrial/Hong Kong duplicators of the ciphertext had make illegal > copies of "the work". > > Now we've got two definitions of "the work" floating around > in Title 17, > which doesn't help the plaintiffs argue that the law or their reading > of it is valid. > > I think this lead to the conclusion that either, > 1. The P's are introducing two meanings for the same word > (which is not > cool), or > 2. The statute is structurally flawed because there is no "the work". > There are two things, and the statute fails to distinguish which it is > referring to. > I would have to vote for the second. Both the plaintext ("the work") -and- the ciphertext are works protectable by copyright. Your Hong Kong pirates are infringing merely by copying the ciphertext without authorization. Access to the plaintext is not even required for infringement to occur. Unfortunately the statute does not distinguish between the multiple states of "the work" ... thus the ambiguity. -- -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 Jul 10 21:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15257 for dvd-discuss-outgoing; Mon, 10 Jul 2000 21:29:19 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA15254 for ; Mon, 10 Jul 2000 21:29:16 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id RAA16118 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 17:42:23 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] [WAY OT]Another approach to "authority" Date: Mon, 10 Jul 2000 17:37:53 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <5A8391CA2D9ED311AFAA080009D982B10B1CC3@mail2.onetouch.com> In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CC3@mail2.onetouch.com> MIME-Version: 1.0 Message-Id: <00071017422118.05357@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > 2. The statute is structurally flawed because there is no "the work". This kind of reminds me of "The Matrix" (which I DID watch and which I DID purchase the overpriced videocassette... and invited my mother over and let her watch too... she didn't like it... another sale lost so pppppppppppbt) But my point is: "Do not try to bend the spoon. You cannot. Just remember the truth - that there is no spoon. Bend yourself". "Do not try to protect the work. You cannot. Just remember the truth: There is no work. Then you realize - you're protecting yourself." Prophetic, huh? Back to our regularly scheduled discussion. -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 21:29:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15266 for dvd-discuss-outgoing; Mon, 10 Jul 2000 21:29:31 -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 VAA15263 for ; Mon, 10 Jul 2000 21:29:30 -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:2.21) with ESMTP id VAA10276 for ; Mon, 10 Jul 2000 21:28:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA22248; Mon, 10 Jul 2000 21:28:13 -0400 (EDT) Date: Mon, 10 Jul 2000 21:28:13 -0400 (EDT) Message-Id: <200007110128.VAA22248@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <8k8n5j$luc$1@blowfish.isaac.cs.berkeley.edu> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > The source of "authorization," if that's the distinction, has to be > intelligible to the end-user. Otherwise, as I think Rob Thau points out > elsewhere, the the vagueness of the authorization model would be a fatal > flaw in the law itself, leaving key terms open to later > definition. (Indeed, even allowing publishers to decide before sales what > authorization method they will demand that the law enforce looks like an > unconstitutional delegation of authority unless 1201 sufficiently restricts > their choices.) Which is why I've argued that the only interpretation of 1201(a) that really makes sense is the one that limits its scope to technological measures which actually perform some kind of non-trivial authorization check themselves. Though that may be more than we need for this case in particular, what with the disclaimers on the players... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 22:11:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16573 for dvd-discuss-outgoing; Mon, 10 Jul 2000 22:11:18 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA16570 for ; Mon, 10 Jul 2000 22:11:17 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA29248 for ; Mon, 10 Jul 2000 19:09:56 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA26156; Mon, 10 Jul 2000 19:08:33 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Streambox case Date: 10 Jul 2000 19:08:16 -0700 Organization: A poorly-installed InterNetNews site Lines: 17 Distribution: isaac Message-ID: <8kdvig$phb$1@blowfish.isaac.cs.berkeley.edu> References: <20000710162149.21284.qmail@web510.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's the bottom line. _Some_ uses are legally protected as fair use, even if the copyright holder doesn't want you to be able to achieve that use. Copy bits attempt to unilaterally condition _every_ use on obtaining permission from the copyright holder (even the protected uses). In other words, copy bits try to take away, by technological means, legally protected rights. Therefore, I find them obnoxious. If you'd like, we can talk about a hypothetical copy bit that only technologically prevents copying where copying is legally forbidden, but permits copying for fair use. I probably wouldn't consider such a hypothetical example obnoxious. But, if the copy bit is a mechanism that subverts the copyright-monopoly / public-interest balance, I consider it obnoxious. I apologize, but I still can't see why you have such a strong objection to me calling copy bits obnoxious. Am I misunderstanding a point you are making? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 22:15:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA16901 for dvd-discuss-outgoing; Mon, 10 Jul 2000 22:15:58 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA16898 for ; Mon, 10 Jul 2000 22:15:57 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA29281 for ; Mon, 10 Jul 2000 19:14:36 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA26182; Mon, 10 Jul 2000 19:13:14 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Circumvention and authority Date: 10 Jul 2000 19:13:04 -0700 Organization: A poorly-installed InterNetNews site Lines: 21 Distribution: isaac Message-ID: <8kdvrg$pi4$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1CC2@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <5A8391CA2D9ED311AFAA080009D982B10B1CC2@mail2.onetouch.com>, Richard Hartman wrote: > > From: Chris Moseng [mailto:moseng@m > ... > > However, I do feel, and see with my own eyes in MPAA testimony, that a > > confluence of events can satisfy a copyright owner's requirements for > > authorization. As long as the events are rigidly defined, the > > copyright > > owner's authority can have meaning and effect. So a person, when > > subjected to or participating in the proper confluence of events, is > > granted or denied authorization. > > > > Too bad for them they never told anybody about it. > > They couldn't tell anybody about it because that would > lead to an illegal tying case against them... A number of posters here on this list seems to hold great faith in the success of an illegal tying case against the DVD industry in case it is suggested that authority derives from both the player and the disc. But I can't see why; is the tying legal argument really that reliable? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 22:20:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17117 for dvd-discuss-outgoing; Mon, 10 Jul 2000 22:20:29 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17114 for ; Mon, 10 Jul 2000 22:20:28 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA29316 for ; Mon, 10 Jul 2000 19:19:07 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA26204; Mon, 10 Jul 2000 19:17:39 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] LOC post-hearing comments are available Date: 10 Jul 2000 19:17:30 -0700 Organization: A poorly-installed InterNetNews site Lines: 17 Distribution: isaac Message-ID: <8ke03q$pir$1@blowfish.isaac.cs.berkeley.edu> References: <8k8poh$m20$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article , Jim Taylor wrote: > No it's not. (No, I did not write it.) It's just a little vague. If a *user* > employs a bit-for-bit copying program to copy a disc, they will copy all but > the lead-in area. They will not be able to play the copy, since the keys > will be missing. That's the point. It's correct. No, because that wouldn't be a complete bit-for-bit copy! `Bit-for-bit copy' is a technical term, with a precise meaning. It means an _exact_ copy of the original, in its entirety. You are saying that one cannot make a bit-for-bit copy onto consumer-grade DVD discs using consumer-grade DVD recorders. That is correct. But that is not what the original quote said. This is an important point. The faulty premise invalidates their conclusion. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 22:26:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA17245 for dvd-discuss-outgoing; Mon, 10 Jul 2000 22:26:14 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA17242 for ; Mon, 10 Jul 2000 22:26:12 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA29331 for ; Mon, 10 Jul 2000 19:24:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA26244; Mon, 10 Jul 2000 19:23:29 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] here is an idea for a defense Date: 10 Jul 2000 19:23:19 -0700 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <4.2.2.20000710114628.00a93980@pop.bellatlantic.net>, Wendy Seltzer wrote: > Plaintiffs want to say, as Dean Marks candidly stated in the Stanford > hearings, that the only player that operates "with the authority of the > copyright owner" is one that does not permit capture of an unencrypted data > stream. What a fascinating stance! I'm sure the MPAA would like that. I would be curious to hear what one might mean by such a position. The issue I'm thinking of is that, technologically speaking, _every_ player permits capture of the unencrypted data stream, so unless the requirement is qualified somehow, it is absurd. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:03:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA17774 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:03:18 -0400 Received: from dial91.roadrunner.com (sf-du91.cybermesa.com [209.12.75.91]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA17771 for ; Mon, 10 Jul 2000 23:03:15 -0400 Received: (from paul@localhost) by dial91.roadrunner.com (8.8.7/8.8.7) id VAA00747 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 21:02:37 -0600 Date: Mon, 10 Jul 2000 21:02:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [WAY OT]Another approach to "authority" Message-ID: <20000710210236.A570@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1CC3@mail2.onetouch.com> <00071017422118.05357@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <00071017422118.05357@www.rjmconsulting.com>; from rmiller@duskglow.com on Mon, Jul 10, 2000 at 05:37:53PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 05:37:53PM -0700, Jim Miller wrote: Paul Fenimore wrote: > > > 2. The statute is structurally flawed because there is no "the work". > > This kind of reminds me of "The Matrix" (which I DID watch and which I DID > purchase the overpriced videocassette... and invited my mother over and let > her watch too... she didn't like it... another sale lost so pppppppppppbt) > > But my point is: > > "Do not try to bend the spoon. You cannot. Just remember the truth - that > there is no spoon. Bend yourself". > > "Do not try to protect the work. You cannot. Just remember the truth: There > is no work. Then you realize - you're protecting yourself." > > Prophetic, huh? > > Back to our regularly scheduled discussion. There would be no "the work" because "the" doesn't apply. There is a ciphertext and a plaintext. Given how the P's want to read the statute that difference between cipher and plain text is probably important. I don't think I'm Uri Geller-ing, but perhaps you feel differently. I'm open to criticism. I'm leaving town for 10 days starting Wednesday, so don't expect any replies during that time. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:09:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA17997 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:09:52 -0400 Received: from dial166.roadrunner.com (sf-du166.cybermesa.com [209.12.75.166]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA17994 for ; Mon, 10 Jul 2000 23:09:49 -0400 Received: (from paul@localhost) by dial166.roadrunner.com (8.8.7/8.8.7) id VAA00937 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 21:09:17 -0600 Date: Mon, 10 Jul 2000 21:09:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Message-ID: <20000710210916.A769@localhost> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Mon, Jul 10, 2000 at 07:23:19PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 07:23:19PM -0700, David A. Wagner wrote: > In article <4.2.2.20000710114628.00a93980@pop.bellatlantic.net>, > Wendy Seltzer wrote: > > Plaintiffs want to say, as Dean Marks candidly stated in the Stanford > > hearings, that the only player that operates "with the authority of the > > copyright owner" is one that does not permit capture of an unencrypted data > > stream. > > What a fascinating stance! I'm sure the MPAA would like that. > > I would be curious to hear what one might mean by such a position. > The issue I'm thinking of is that, technologically speaking, _every_ > player permits capture of the unencrypted data stream, so unless the > requirement is qualified somehow, it is absurd. Lucky for us that Mr. Dean Marks is employed by Time Warner, Inc. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18101 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:27:27 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA18098 for ; Mon, 10 Jul 2000 23:27:25 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <349C56YV>; Mon, 10 Jul 2000 23:30:33 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] [dvd discuss] amicus brief for trial? Date: Mon, 10 Jul 2000 23:30:32 -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 It seems like we are getting pretty close to trial date, do we want to submit a brief? [ I assume yes ] What arguments should we get into? Is it wise for us to make arguments of legal conclusion, or should it be just the facts? Personally, I can trust my own expertise to speak on issues of: 1. Software process and the software development model (in other words, how DeCSS is an intermediate product in software development). 2. How a TPM for the protection of software differs from CSS What I find most interesting in the discussions in this list are: 1. The analysis and conclusion that DeCSS doesn't constitute circumvention under 1201. One Q I haven't seen us answer is -- what are some examples of technologically feasible TPMs that 1201 would protect? Are there any? (Personally, I think 1201 protects a distribution model where decryption keys are separately distributed for money). 2. The nature of publication, with first-sale, fair use, and consumer understanding (for lack of a better term). From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:30:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18190 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:30:38 -0400 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA18187 for ; Mon, 10 Jul 2000 23:30:37 -0400 Received: from 216-164-136-244.s244.tnt4.lnhva.md.dialup.rcn.com ([216.164.136.244]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 2.12 #3) id 13BqjZ-0004iu-00 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 23:29:22 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CC0@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CC0@mail2.onetouch.com> Date: Mon, 10 Jul 2000 22:22:07 -0500 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: RE: [dvd-discuss] Another approach to "semantics" 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 > > > 7. Lawsuits are filed, and the dvd-discuss group, in > > promulgating the first > > sale doctrine, argues that DiVX had a better claim to Chapter > > 12 protection. > > > >It -did- have better claim to 1201 protection ... but it >-didn't- perform well in the marketplace (primarily due >to those privacy issues as far as I can tell) > >So what's your point? Be careful what you wish for. Obviously, if the successor to DVD is based on a pay per use system, whereby the key to the heavily encrypted disc is rented to the consumer, contingent on the electronic signing of a usage contract, the conduct currently protected under "fair use" will suffer. Legally, such a system might be above board, but morally? Jeremy From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:48:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18523 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:48:10 -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 XAA18520 for ; Mon, 10 Jul 2000 23:48:08 -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:2.21) with ESMTP id XAA19441 for ; Mon, 10 Jul 2000 23:46:54 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA23689; Mon, 10 Jul 2000 23:46:53 -0400 (EDT) Date: Mon, 10 Jul 2000 23:46:53 -0400 (EDT) Message-Id: <200007110346.XAA23689@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Newsgroups: isaac.lists.dvd-discuss In-Reply-To: <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > In article <4.2.2.20000710114628.00a93980@pop.bellatlantic.net>, > Wendy Seltzer wrote: > > Plaintiffs want to say, as Dean Marks candidly stated in the > > Stanford hearings, that the only player that operates "with the > > authority of the copyright owner" is one that does not permit > > capture of an unencrypted data stream. > > What a fascinating stance! I'm sure the MPAA would like that. > > I would be curious to hear what one might mean by such a position. > The issue I'm thinking of is that, technologically speaking, _every_ > player permits capture of the unencrypted data stream, so unless the > requirement is qualified somehow, it is absurd. Well, the phrase "ordinary course of its operation" is plastered all over the DMCA, and licensed DVD players don't, in fact, provide digital plaintext output in the ordinary course of their operation, just a somewhat degraded analog version --- with, in some cases, a Macrovision overlay to impair copying with consumer VCRs. What I find intriguing about Mr. Marks' comments is how he gets from the law to the particular requirement that capture is not allowed, unless he believes that the copyright holders are allowed to impose any requirements, and these are just the ones they happened to choose this time around... but perhaps before commenting more I should look at his comments in context. rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 10 23:58:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA18794 for dvd-discuss-outgoing; Mon, 10 Jul 2000 23:58:13 -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 XAA18791 for ; Mon, 10 Jul 2000 23:58:13 -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:2.21) with ESMTP id XAA20018 for ; Mon, 10 Jul 2000 23:56:58 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id XAA26032; Mon, 10 Jul 2000 23:56:57 -0400 (EDT) Date: Mon, 10 Jul 2000 23:56:57 -0400 (EDT) Message-Id: <200007110356.XAA26032@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] [dvd discuss] amicus brief for trial? In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> References: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > One Q I haven't seen us answer is -- what are some examples of > technologically feasible TPMs that 1201 would protect? Are there > any? (Personally, I think 1201 protects a distribution model where > decryption keys are separately distributed for money). I've been citing two with some regularity, in discussing 1201(a) --- pay-per-view cable TV (the TPM being download of a key into the authorized viewers' set-top box, and subsequent use of that key to decode the datastream), and Circuit City Divx (the TPM being distribution of keys over encrypted datastreams via modem). Paul Fenimore has doubts about the second of these --- if I understand his objections correctly, then the problem is that people who have bought a movie on Circuit City DivX will lose access to the work they've bought, which is antithetical to the nature of publication under traditional notions of copyright law. If I got that right, then I'll agree that they're abusing the consumers. I'm not sure, though, that that's an argument that they're abusing the law, as written, so much as an argument that the law is overbroad, is changing the notion of publication in ways that its proponents weren't up-front about, and is protecting a scheme that it shouldn't. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 00:02:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18926 for dvd-discuss-outgoing; Tue, 11 Jul 2000 00:02:43 -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 AAA18923 for ; Tue, 11 Jul 2000 00:02:41 -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:2.21) with ESMTP id AAA20323 for ; Tue, 11 Jul 2000 00:01:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA27050; Tue, 11 Jul 2000 00:01:19 -0400 (EDT) Date: Tue, 11 Jul 2000 00:01:19 -0400 (EDT) Message-Id: <200007110401.AAA27050@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <5A8391CA2D9ED311AFAA080009D982B10B1CC0@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin writes: > >So what's your point? > > Be careful what you wish for. Obviously, if the successor to DVD is > based on a pay per use system, whereby the key to the heavily > encrypted disc is rented to the consumer, contingent on the > electronic signing of a usage contract, the conduct currently > protected under "fair use" will suffer. Legally, such a system might > be above board, but morally? Well, no one can prove a hypothetical, but it seems likely to some of us that the MPAA would have tried to push things in that direction anyway over time. One of the things this fight is about is how much legal support they if and when they try it... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 00:31:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA19180 for dvd-discuss-outgoing; Tue, 11 Jul 2000 00:31:29 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA19177 for ; Tue, 11 Jul 2000 00:31:28 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id AAA27787 for ; Tue, 11 Jul 2000 00:30:13 -0400 Date: Tue, 11 Jul 2000 00:30:13 -0400 (EDT) From: Ole Craig To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E18@c100.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 07/08/00 at 15:57, 'twas brillig and Leland Ray scrobe: > > Have the plaintiffs deposed anyone, and is a transcript available? They have. (Myself, and several others.) I sent mail to Ed Hernstadt asking if it was permissible to make public the transcript of my deposition, but he hasn't gotten back to me yet. (I have the feeling his schedule is, um, a tad hectic at the moment, so I'm not particularly miffed at this.) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 00:50:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA19284 for dvd-discuss-outgoing; Tue, 11 Jul 2000 00:50:28 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA19281 for ; Tue, 11 Jul 2000 00:50:26 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA02548 for ; Mon, 10 Jul 2000 23:48:55 -0500 Message-ID: <396AA6D7.7532B209@mninter.net> Date: Mon, 10 Jul 2000 23:47:19 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.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 > Plaintiffs want to say, as Dean Marks candidly stated in the Stanford > hearings, that the only player that operates "with the authority of > the copyright owner" is one that does not permit capture of an > unencrypted data stream. Is it possible that by trying to combine > 1201(a) and 1201(b) controls in one mechanism, they fail at both? > Wendy Seltzer -- wendy@seltzer.com This may or may not address your question, but I odn't think that necessarily their over-reach in terms of the law is the problem, just that their reliance on DVDCCA-CSS-compliant players is both 1. not stipulated at the sale of a DVD and 2. necessarily a violation of anti-trust/abuse of copyright. The reason for 1, as has been pointed out, is 2. So perhaps the application of 1201(a) and (b) controls together necessitate that in every case, but I wouldn't count on it. Or, it may be that attempting to implement a (b) control is nigh impossible to do without abuse of copyright in every case, independant of (a). -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:12:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19494 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:12:19 -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 BAA19491 for ; Tue, 11 Jul 2000 01:12:19 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id BAA01377 for ; Tue, 11 Jul 2000 01:10:34 -0400 Date: Tue, 11 Jul 2000 01:10:34 -0400 (EDT) From: Joshua Stratton To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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 Well just as long as everyone has been granted access to the transcripts, we ought to be ok ;) On Tue, 11 Jul 2000, Ole Craig wrote: > On 07/08/00 at 15:57, 'twas brillig and Leland Ray scrobe: > > > > Have the plaintiffs deposed anyone, and is a transcript available? > > They have. (Myself, and several others.) I sent mail to Ed > Hernstadt asking if it was permissible to make public the transcript > of my deposition, but he hasn't gotten back to me yet. (I have the > feeling his schedule is, um, a tad hectic at the moment, so I'm not > particularly miffed at this.) From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:19:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19659 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:19:07 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19656 for ; Tue, 11 Jul 2000 01:19:06 -0400 Received: from hoth (user-2inib0e.dsl.mindspring.com [165.121.44.14]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA14181 for ; Mon, 10 Jul 2000 22:17:47 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] here is an idea for a defense Date: Mon, 10 Jul 2000 22:17:44 -0700 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 (9.0.2911.0) In-Reply-To: <200007110346.XAA23689@soggy-fibers.ai.mit.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > In article <4.2.2.20000710114628.00a93980@pop.bellatlantic.net>, > Wendy Seltzer wrote: > > Plaintiffs want to say, as Dean Marks candidly stated in the > > Stanford hearings, that the only player that operates "with the > > authority of the copyright owner" is one that does not permit > > capture of an unencrypted data stream. > > What a fascinating stance! I'm sure the MPAA would like that. > > I would be curious to hear what one might mean by such a position. > The issue I'm thinking of is that, technologically speaking, _every_ > player permits capture of the unencrypted data stream, so unless the > requirement is qualified somehow, it is absurd. The CSS license, when referring to computers, specifically requires that the decrypted stream (post CSS, pre MPEG decode) be protected. This may be what Mr. Marks had in mind. There is a clear distinction in the license between unencrypted data streams and uncompressed data streams. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:24:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19743 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:24:00 -0400 Received: from dial71.roadrunner.com (dial71.cybermesa.com [209.12.75.71] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19740 for ; Tue, 11 Jul 2000 01:23:58 -0400 Received: (from paul@localhost) by dial71.roadrunner.com (8.8.7/8.8.7) id XAA01580 for dvd-discuss@eon.law.harvard.edu; Mon, 10 Jul 2000 23:23:24 -0600 Date: Mon, 10 Jul 2000 23:23:23 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? Message-ID: <20000710232323.A962@localhost> References: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> <200007110356.XAA26032@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: <200007110356.XAA26032@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Mon, Jul 10, 2000 at 11:56:57PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 10, 2000 at 11:56:57PM -0400, Robert S. Thau wrote: > Leland Ray writes: > > > One Q I haven't seen us answer is -- what are some examples of > > technologically feasible TPMs that 1201 would protect? Are there > > any? (Personally, I think 1201 protects a distribution model where > > decryption keys are separately distributed for money). > > I've been citing two with some regularity, in discussing 1201(a) --- > pay-per-view cable TV (the TPM being download of a key into the > authorized viewers' set-top box, and subsequent use of that key to > decode the datastream), and Circuit City Divx (the TPM being > distribution of keys over encrypted datastreams via modem). > > Paul Fenimore has doubts about the second of these --- if I understand > his objections correctly, then the problem is that people who have > bought a movie on Circuit City DivX will lose access to the work > they've bought, which is antithetical to the nature of publication > under traditional notions of copyright law. > > If I got that right, then I'll agree that they're abusing the > consumers. I'm not sure, though, that that's an argument that they're > abusing the law, as written, so much as an argument that the law is > overbroad, is changing the notion of publication in ways that its > proponents weren't up-front about, and is protecting a scheme that it > shouldn't. This represents my views correctly. I'll elaborate a little bit. I agree that Divx is a valid model of authority. You are correct that my objection is based on the bad things that could happen to publication under 1201(a). I think the problems with publication may be resolved by taking "access" to refer to the commercial transaction which transfers a physical copy from the copyright owner to a new copy-owner (or creates a legal copy, rather than transferring one). If that def'n of access holds, then Divx encryption isn't effectively controlling access because access is over and done with. All that remains after commercial access is use. (Strangely enough, I'm including the possibility that the copyright owner will distribute a disk gratis under "commercial".) If the commercial def'n of access fails, then I think a direct and/or void-for-vagueness constitutional challenge to 1201(a) are the remaining options to preserve some semblance of what "publication" used to mean. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:24:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19783 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:24:57 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19780 for ; Tue, 11 Jul 2000 01:24:55 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA29810 for ; Mon, 10 Jul 2000 22:23:34 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA26360; Mon, 10 Jul 2000 22:22:11 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] here is an idea for a defense Date: 10 Jul 2000 22:21:51 -0700 Organization: A poorly-installed InterNetNews site Lines: 24 Distribution: isaac Message-ID: <8keatf$pnn$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> <200007110346.XAA23689@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 wrote: > David A. Wagner writes: > > Wendy Seltzer wrote: > > > Plaintiffs want to say, as Dean Marks candidly stated in the > > > Stanford hearings, that the only player that operates "with the > > > authority of the copyright owner" is one that does not permit > > > capture of an unencrypted data stream. > > > > I would be curious to hear what one might mean by such a position. > > The issue I'm thinking of is that, technologically speaking, _every_ > > player permits capture of the unencrypted data stream, so unless the > > requirement is qualified somehow, it is absurd. > > Well, the phrase "ordinary course of its operation" is plastered all > over the DMCA, and licensed DVD players don't, in fact, provide > digital plaintext output in the ordinary course of their operation, They may not provide the plaintext to you on a silver platter, in the ordinary course of operation. Nonetheless, they _do_ permit capture of it, if you actively dig for it. There is a difference. I don't know which meaning Dean Marks intended, though. I'm just going by Wendy Selzter's paraphrasing. Does anyone have a pointer to Dean Marks' full comments in context? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:34:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA20007 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:34:54 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA20004 for ; Tue, 11 Jul 2000 01:34:52 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA29857 for ; Mon, 10 Jul 2000 22:33:32 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA26405; Mon, 10 Jul 2000 22:32:09 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? Date: 10 Jul 2000 22:31:59 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8kebgf$pp4$1@blowfish.isaac.cs.berkeley.edu> References: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com>, Leland Ray wrote: > One Q I haven't seen us answer is -- what are some examples of > technologically feasible TPMs that 1201 would protect? Are there > any? (Personally, I think 1201 protects a distribution model where > decryption keys are separately distributed for money). I would think so, too, assuming that the decryption keys are distributed with the authority of the copyright holder (and not on the whim of some third party). As a consequence, only systems that profit the copyright holder would receive legal protection; systems built for the profit of, e.g., Circuit City would not. (Ahh, "Divx". Sigh.) In such a scenario, I'd guess that copyright holders would hold all the bargaining power, and the Divx manufacturers will hold very little. Interestingly, it seems that this is not too much of a change from the status quo, at least in terms of the economics and business models. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 01:38:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA20129 for dvd-discuss-outgoing; Tue, 11 Jul 2000 01:38:35 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA20126 for ; Tue, 11 Jul 2000 01:38:34 -0400 Received: from hoth (user-2inib0e.dsl.mindspring.com [165.121.44.14]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA29324 for ; Mon, 10 Jul 2000 22:37:18 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 10 Jul 2000 22:37:16 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <396A3A21.1BFECC27@mit.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati, on Monday, July 10, 2000 2:03 PM wrote: >Divx is an important counterexample here. With Divx, stolen players >don't work (you don't have the Divx account that makes them work) and >stolen disks don't work Technical correction. Stolen discs work fine. Your Divx account is billed just as if you had bought the disc. Again, there is no way for the player (or the mainframe computer, if the disc was not played before it was stolen) to tell the difference between a purchased disc and a stolen disc. That's why the point of sale argument seems silly to me. Ironically, pirated discs work as well. Pirated Divx discs would also be billed to your account, while the pirate saved DVE the trouble and expense of replicating the disc. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 02:03:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20602 for dvd-discuss-outgoing; Tue, 11 Jul 2000 02:03:16 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20599 for ; Tue, 11 Jul 2000 02:03:15 -0400 Received: from hoth (user-2inib0e.dsl.mindspring.com [165.121.44.14]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA17228 for ; Mon, 10 Jul 2000 23:02:00 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 10 Jul 2000 23:01:57 -0700 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 (9.0.2911.0) In-Reply-To: <200007102101.RAA20567@soggy-fibers.ai.mit.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau, on Monday, July 10, 2000 2:01 PM writes: >A disc (stolen or not) has data with MPEG header blocks which >certify it as an authorized MPEG-encoded disc. The player (stolen >or not) has its codecs and MPEG decompression algorithm that certify >it as an authorized player. The interaction between the two is an >authorization process, and that is what authorizes playback. > >This is obviously nonsense. But why? Nothing is obviously nonsensical here to me, other than the technical errors. CSS is not related to MPEG. The keys are not stored in MPEG headers, and DVD CCA doesn't care how you make your MPEG decoder. The CSS decryption process occurs upstream of the MPEG decode process. The CSS license does require that player makers (including software) tightly couple the decryption the decoding. >Now, you seem to read the DMCA to say that what CSS does is an >authorization check (because the player has to know the trade-secret >numbers used as keys). But it seems to me that someone could just as >easily say that what MPEG-DPG does is an authorization check (because >the player has to know the various magic numbers embedded in the >MPEG-DPG format specs) --- either way, the player has to demonstrate >knowledge of MPAA trade secrets in order to access the work. Ok. Either CSS or MPEG-DPG can be used to establish authority. If MPEG-DPG is licensed as a protection technology, then it qualifies under DMCA. >Note that the DMCA definition of circumvention does not say that it >*must* involve decryption or descrambling --- it can be bypassing any >measure which "requires the authority of the copyright owner". And if >MPEG-DPG decompression requires the authority of the copyright owner >--- which can simply mean that the algorithm is trade secret, on the >MPAA's reading of the law (that's what they say about CSS!) --- that >means decompression without their authority is circumvention. If you make MPEG-DPG compression a licensed protection measure, then indeed MPEG-DPG decompression without authority is circumvention (disregarding fair use and fair access, for the moment). But that's a bogus argument. It's like coming up with a new method of withdrawing money from the bank that requires a password, then claiming that other kinds of withdrawals are stealing. You have mixed the two together, so you can't have one without the other. But in the case of CSS they are not mixed. Only *decryption* without authority is being claimed to be circumvention, not decompression. But if your point is that a special version of MPEG could be used to control access under DMCA, then I would have to agree. >And if that's right, then the copyright holders can use the DMCA to >protect *any* process which is necessary to gain access to their work >--- which (as I've argued a couple of times over the past few days) is >a constitutionally problematic result, and which also conflicts with >the clear intent of Congress as shown in the legislative record. Agreed. We're now back to the legality of DMCA, which I'm not competent to judge. But my original point was that authorization can't take place solely at the point of sale. >What you're saying here is that CSS does not perform any effective >check as to whether or not you are authorized to view a particular >DVD. Which is precisely why I have argued that it does *not* meet >the 1201(a) definition of effective access control, at least on my own >reading of the statute... Why is the burden on CSS to determine if the disc is stolen or not? CSS is designed to check if the copy of the work is a legitimate copy. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 02:03:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20610 for dvd-discuss-outgoing; Tue, 11 Jul 2000 02:03:27 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20607 for ; Tue, 11 Jul 2000 02:03:25 -0400 Received: from hoth (user-2inib0e.dsl.mindspring.com [165.121.44.14]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA17519 for ; Mon, 10 Jul 2000 23:02:10 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Mon, 10 Jul 2000 23:02:07 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <20000710152506.B2309@localhost> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore, on Monday, July 10, 2000 2:25 PM, writes: >But this is a media-specific claim. For the sake of argument, let's take >the P's claim that "internet transmission is viable" is correct. But they claim only that Internet transmission of *circumvented* content is viable. >Transmit a disk image electronically. This is playable using a drive >emulator and the disk image. (I'm not saying an appropriate drive >emulator exists). An image-maker does not exist either. All software I'm aware of would not copy the key block, so the image would not play on an emulator. In theory, an image-maker could be written that reads the lead-in area of the disc so that everything that is needed for CSS decryption is included in the image. This would be little different than a bit-for-bit pirated copy. However, in order to create the appropriate drive emulator, one would have to include the drive's portion of the CSS algorithm, which the DVD CCA claims can only be used under license. >All the claimed "piracy control" features of CSS stem from the licensing >agreements that dictate the way in which a player will operate. The control >features are not a result of CSS as a crypto system. Agreed -- it's the license that implements all the restrictions. The crypto system is simply a sufficiently complex technological protection mechanism that it's covered under the DMCA. >I think the media-specific claims are very suspect -- they assume that >the copyright owners will exert some control over the player and/or >media markets. It's worth mentioning that the CSS license requires a separate protection system such as DTCP when the content is separated from the media and the player. --Jim From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 02:33:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA20854 for dvd-discuss-outgoing; Tue, 11 Jul 2000 02:33:58 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA20851 for ; Tue, 11 Jul 2000 02:33:57 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id CAA18533; Tue, 11 Jul 2000 02:33:37 -0400 Message-ID: <396ABFC1.2894EF73@mit.edu> Date: Tue, 11 Jul 2000 02:33:37 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <5A8391CA2D9ED311AFAA080009D982B10B1CC0@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 Jeremy Erwin wrote: > > > > > > 7. Lawsuits are filed, and the dvd-discuss group, in > > > promulgating the first > > > sale doctrine, argues that DiVX had a better claim to Chapter > > > 12 protection. > > > > > > >It -did- have better claim to 1201 protection ... but it > >-didn't- perform well in the marketplace (primarily due > >to those privacy issues as far as I can tell) > > > >So what's your point? > > Be careful what you wish for. Obviously, if the successor to DVD is > based on a pay per use system, whereby the key to the heavily > encrypted disc is rented to the consumer, contingent on the > electronic signing of a usage contract, the conduct currently > protected under "fair use" will suffer. Legally, such a system might > be above board, but morally? > > Jeremy At some point you have to have some faith in people. Remember, in the end, consumers did not accept Divx. If, after free and fair competition, consumers will accept a system that destroys fair use there is nothing we can do to stop it. The only thing we can do is make sure the MPAA does not get away with imposing such a system without telling people about it. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 08:35:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA24369 for dvd-discuss-outgoing; Tue, 11 Jul 2000 08:35:55 -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 IAA24366 for ; Tue, 11 Jul 2000 08:35:53 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id IAA06056 for ; Tue, 11 Jul 2000 08:34:39 -0400 (EDT) Date: Tue, 11 Jul 2000 08:34:39 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? In-Reply-To: <8kebgf$pp4$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 10 Jul 2000, David A. Wagner wrote: > In article <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com>, > Leland Ray wrote: > > One Q I haven't seen us answer is -- what are some examples of > > technologically feasible TPMs that 1201 would protect? Are there > > any? (Personally, I think 1201 protects a distribution model where > > decryption keys are separately distributed for money). > I would think so, too, assuming that the decryption keys are distributed > with the authority of the copyright holder (and not on the whim of some > third party). > As a consequence, only systems that profit the copyright holder would > receive legal protection; systems built for the profit of, e.g., Circuit > City would not. (Ahh, "Divx". Sigh.) > I'm not sure of the exact name of the product, but Adobe once made a CD-ROM of their typeface library. The initial license (cost ~50$) allowed you to decrypt up to a certain number (5?) typefaces. Subsequently, one could order keys to unlock additional typefaces. You could also order, for tens of thosuands of dollars, complete access to the library. Shareware is sometimes distributed in a similar manner. I could see these revenue models being protected by 1201. Video on demand, digital cable, and pay per view could also be protected. Possibly this would extend to SDMI, and "glassbooks", but I'm not sure. (exactly what are the copyright limitations on Type 1 Postscript fonts? I've heard that copying the computer code violates copyright, but redigitization of the output is not necessarily prohibited by law). Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 08:39:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA24490 for dvd-discuss-outgoing; Tue, 11 Jul 2000 08:39:11 -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 IAA24486 for ; Tue, 11 Jul 2000 08:39:11 -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:2.21) with ESMTP id IAA20392 for ; Tue, 11 Jul 2000 08:37:57 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA23325; Tue, 11 Jul 2000 08:37:56 -0400 (EDT) Date: Tue, 11 Jul 2000 08:37:56 -0400 (EDT) Message-Id: <200007111237.IAA23325@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? In-Reply-To: <20000710232323.A962@localhost> References: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> <200007110356.XAA26032@soggy-fibers.ai.mit.edu> <20000710232323.A962@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > If the commercial def'n of access fails, then I think a direct and/or > void-for-vagueness constitutional challenge to 1201(a) are the remaining > options to preserve some semblance of what "publication" used to mean. But, I believe, Congress can change the meaning of publication, if they want, at least to an extent. Congress certainly has, in the past, allowed copyright holders to restrict certain uses of a published work, well after publication and sale --- public performance of a published play, for instance. If those changes were an unintended consequence of something they hadn't thought through, would that, by itself, really make them unconstitutional? rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 08:41:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA24571 for dvd-discuss-outgoing; Tue, 11 Jul 2000 08:41:48 -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 IAA24568 for ; Tue, 11 Jul 2000 08:41:47 -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:2.21) with ESMTP id IAA20550 for ; Tue, 11 Jul 2000 08:40:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA23925; Tue, 11 Jul 2000 08:40:32 -0400 (EDT) Date: Tue, 11 Jul 2000 08:40:32 -0400 (EDT) Message-Id: <200007111240.IAA23925@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense Newsgroups: isaac.lists.dvd-discuss In-Reply-To: <8keatf$pnn$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> <200007110346.XAA23689@soggy-fibers.ai.mit.edu> <8keatf$pnn$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > > Well, the phrase "ordinary course of its operation" is plastered all > > over the DMCA, and licensed DVD players don't, in fact, provide > > digital plaintext output in the ordinary course of their operation, > > They may not provide the plaintext to you on a silver platter, in the > ordinary course of operation. Nonetheless, they _do_ permit capture of > it, if you actively dig for it. There is a difference. Ah, but that "active digging", if it goes so far as taking the covers off (or using a debugger, for a software player) is not "the ordinary course of [the player's] operation", and would probably be circumvention in the minds of the plaintiffs... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 08:53:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA24812 for dvd-discuss-outgoing; Tue, 11 Jul 2000 08:53:09 -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 IAA24809 for ; Tue, 11 Jul 2000 08:53:08 -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:2.21) with ESMTP id IAA21345 for ; Tue, 11 Jul 2000 08:51:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA26526; Tue, 11 Jul 2000 08:51:53 -0400 (EDT) Date: Tue, 11 Jul 2000 08:51:53 -0400 (EDT) Message-Id: <200007111251.IAA26526@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <396A3A21.1BFECC27@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Technical correction. Stolen discs work fine. Your Divx account is billed > just as if you had bought the disc. Again, there is no way for the player > (or the mainframe computer, if the disc was not played before it was stolen) > to tell the difference between a purchased disc and a stolen disc. That's > why the point of sale argument seems silly to me. > > Ironically, pirated discs work as well. Pirated Divx discs would also be > billed to your account, while the pirate saved DVE the trouble and expense > of replicating the disc. Wow. I've been assuming (and perhaps I'm not the only one) that the Divx central systems actually kept track of which players were entitled to view which titles. (Which would require the cashier at point-of-"sale"/rental to know your player's ID, and upload it to central systems, but you could have that on a card, like an ordinary video rental membership card --- so, the cashier would swipe your card once, and then put the disk cases through a barcode reader to download the data. There's nothing technically hard about it, other than standard scaling issues). If not, well... take every reference to Divx I've made over the past few weeks, and replace it with "a system like Divx, except one that actually checks that the player's owner has purchased rights to the title". Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 09:00:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25191 for dvd-discuss-outgoing; Tue, 11 Jul 2000 09:00:33 -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 JAA25188 for ; Tue, 11 Jul 2000 09:00:32 -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:2.21) with ESMTP id IAA21880 for ; Tue, 11 Jul 2000 08:59:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA28225; Tue, 11 Jul 2000 08:59:18 -0400 (EDT) Date: Tue, 11 Jul 2000 08:59:18 -0400 (EDT) Message-Id: <200007111259.IAA28225@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <200007102101.RAA20567@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Ok. Either CSS or MPEG-DPG can be used to establish authority. If MPEG-DPG > is licensed as a protection technology, then it qualifies under DMCA. So, in your view, any technology can be a protection technology, so long as the copyright owners say it is... and by saying so, they get an unrestricted and indefinite right to determine how that technology may be used, by attaching arbitrary conditions to the license. Have I got that right? The plaintiffs seem to agree with you ... but that's not how Paul and I read the law, and it's demonstrably not what Congress had in mind when they passed it. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 09:04:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA25316 for dvd-discuss-outgoing; Tue, 11 Jul 2000 09:04:59 -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 JAA25313 for ; Tue, 11 Jul 2000 09:04:58 -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:2.21) with ESMTP id JAA22260 for ; Tue, 11 Jul 2000 09:03:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA29266; Tue, 11 Jul 2000 09:03:43 -0400 (EDT) Date: Tue, 11 Jul 2000 09:03:43 -0400 (EDT) Message-Id: <200007111303.JAA29266@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] LOC post-hearing comments are available In-Reply-To: References: <20000710152506.B2309@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Agreed -- it's the license that implements all the restrictions. The crypto > system is simply a sufficiently complex technological protection mechanism > that it's covered under the DMCA. IANAL, but I'll risk a legal correction --- the complexity of a TPM has nothing to do with whether it comes under the scope of the DMCA. The relevant conditions in 1201(a) and (b) simply describe what the TPM must do "in the ordinary course of its operation". And none to clearly at that --- witness our tiff about whether the bit about "requires ... authority of the copyright owner" in 1201(a) is something that the *TPM* is supposed to check, or whether it just means that that copyright owner must have asserted at some point that "this is a protection mechanism". rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 09:37:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA26291 for dvd-discuss-outgoing; Tue, 11 Jul 2000 09:37:01 -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 JAA26288 for ; Tue, 11 Jul 2000 09:37:00 -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 JAA11492; Tue, 11 Jul 2000 09:35:05 -0400 Message-Id: <200007111335.JAA11492@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? In-reply-to: Your message of "Mon, 10 Jul 2000 23:56:57 EDT." <200007110356.XAA26032@soggy-fibers.ai.mit.edu> Date: Tue, 11 Jul 2000 09:34:35 -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: : I've been citing two with some regularity, in discussing 1201(a) --- : pay-per-view cable TV (the TPM being download of a key into the : authorized viewers' set-top box, and subsequent use of that key to : decode the datastream), and Circuit City Divx (the TPM being : distribution of keys over encrypted datastreams via modem). : : Paul Fenimore has doubts about the second of these --- if I understand : his objections correctly, then the problem is that people who have : bought a movie on Circuit City DivX will lose access to the work : they've bought, which is antithetical to the nature of publication : under traditional notions of copyright law. : : If I got that right, then I'll agree that they're abusing the : consumers. I'm not sure, though, that that's an argument that they're : abusing the law, as written, so much as an argument that the law is : overbroad, is changing the notion of publication in ways that its : proponents weren't up-front about, and is protecting a scheme that it : shouldn't. Aren't there cases, long before the DMCA, where programmers who put logic bombs in their programs were convicted. And isn't there a nice class action potential for breach of contract, or implied contract, or warranty, or something more creative, against the vendors of DivX for discontinuing their service that has nothing to do with the DMCA? And shouldn't works that have been sold under DivX be among the classes of works that are exempted from the prohibition of 1201(a)(1) by the Librarian of Congress. I would agree that DivX is protected by the DMCA, although I do not believe that DeCSS is. I also believe that things like DivX (and dongles) are undesireable for consumer goods. As to the latter point, the market seems to agree with 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 Tue Jul 11 09:45:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA26910 for dvd-discuss-outgoing; Tue, 11 Jul 2000 09:45:27 -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 JAA26907 for ; Tue, 11 Jul 2000 09:45:26 -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 JAA11536; Tue, 11 Jul 2000 09:43:40 -0400 Message-Id: <200007111343.JAA11536@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? In-reply-to: Your message of "Mon, 10 Jul 2000 23:23:23 MDT." <20000710232323.A962@localhost> Date: Tue, 11 Jul 2000 09:43:40 -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 Mon, Jul 10, 2000 at 11:56:57PM -0400, Robert S. Thau wrote: : > Leland Ray writes: : > : > > One Q I haven't seen us answer is -- what are some examples of : > > technologically feasible TPMs that 1201 would protect? Are there : > > any? (Personally, I think 1201 protects a distribution model where : > > decryption keys are separately distributed for money). : > : > I've been citing two with some regularity, in discussing 1201(a) --- : > pay-per-view cable TV (the TPM being download of a key into the : > authorized viewers' set-top box, and subsequent use of that key to : > decode the datastream), and Circuit City Divx (the TPM being : > distribution of keys over encrypted datastreams via modem). : > : > Paul Fenimore has doubts about the second of these --- if I understand : > his objections correctly, then the problem is that people who have : > bought a movie on Circuit City DivX will lose access to the work : > they've bought, which is antithetical to the nature of publication : > under traditional notions of copyright law. : > : > If I got that right, then I'll agree that they're abusing the : > consumers. I'm not sure, though, that that's an argument that they're : > abusing the law, as written, so much as an argument that the law is : > overbroad, is changing the notion of publication in ways that its : > proponents weren't up-front about, and is protecting a scheme that it : > shouldn't. : : This represents my views correctly. I'll elaborate a little bit. : : I agree that Divx is a valid model of authority. You are correct that : my objection is based on the bad things that could happen to publication : under 1201(a). I think the problems with publication may be resolved by : taking "access" to refer to the commercial transaction which transfers : a physical copy from the copyright owner to a new copy-owner (or creates : a legal copy, rather than transferring one). : : If that def'n of access holds, then Divx encryption isn't effectively : controlling access because access is over and done with. All that : remains after commercial access is use. (Strangely enough, I'm including : the possibility that the copyright owner will distribute a disk gratis : under "commercial".) : : If the commercial def'n of access fails, then I think a direct and/or : void-for-vagueness constitutional challenge to 1201(a) are the remaining : options to preserve some semblance of what "publication" used to mean. As I understand it, the provision for exemption by the Librarian of Congress contained in 1201(a)(1) is intended to take care of that problem. (Although I have doubts whether is can be enough, unless all works are exempted.) By the way, in my previous message I said that I thought the DivX system was covered by the DMCA, meaning 1201(a), I should have added that that is my view if the DivX disks are leased, to avoid the first sale doctrine, rather than sold. I don't know where I come out in the actual case where the damn things were sold rather than leased. -- 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 Jul 11 09:55:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA27113 for dvd-discuss-outgoing; Tue, 11 Jul 2000 09:55:10 -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 JAA27109 for ; Tue, 11 Jul 2000 09:55:09 -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 JAA11617; Tue, 11 Jul 2000 09:53:14 -0400 Message-Id: <200007111353.JAA11617@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-reply-to: Your message of "Tue, 11 Jul 2000 02:33:37 EDT." <396ABFC1.2894EF73@mit.edu> Date: Tue, 11 Jul 2000 09:52:44 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: : At some point you have to have some faith in people. Remember, : in the end, consumers did not accept Divx. If, after free and : fair competition, consumers will accept a system that destroys : fair use there is nothing we can do to stop it. The only thing : we can do is make sure the MPAA does not get away with imposing : such a system without telling people about it. And one also has to be aware that one can only fight one war at a time. I am afraid that I must qualify my statements about divx and 1201(a) once again, for I know very little about the former, and in particular was not aware that it was Circuit City, rather than the copyright holders, who gave the authority. Clearly that is not a transaction that has anything to do with 1201(a) (unless Circuit City was acting as the agent of the copyright owners.) -- 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 Jul 11 10:32:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA28485 for dvd-discuss-outgoing; Tue, 11 Jul 2000 10:32:25 -0400 Received: from dial64.roadrunner.com (dial64.cybermesa.com [209.12.75.64] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA28482 for ; Tue, 11 Jul 2000 10:32:22 -0400 Received: (from paul@localhost) by dial64.roadrunner.com (8.8.7/8.8.7) id IAA00760 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 08:31:43 -0600 Date: Tue, 11 Jul 2000 08:31:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? Message-ID: <20000711083141.A576@localhost> References: <611C0CE12596D311B466009027D5E7591E4E2A@c100.clearway.com> <200007110356.XAA26032@soggy-fibers.ai.mit.edu> <20000710232323.A962@localhost> <200007111237.IAA23325@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: <200007111237.IAA23325@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Tue, Jul 11, 2000 at 08:37:56AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 11, 2000 at 08:37:56AM -0400, Robert S. Thau wrote: > Paul Fenimore writes: > > > If the commercial def'n of access fails, then I think a direct and/or > > void-for-vagueness constitutional challenge to 1201(a) are the remaining > > options to preserve some semblance of what "publication" used to mean. > > But, I believe, Congress can change the meaning of publication, if > they want, at least to an extent. Congress certainly has, in the > past, allowed copyright holders to restrict certain uses of a > published work, well after publication and sale --- public performance > of a published play, for instance. > > If those changes were an unintended consequence of something they > hadn't thought through, would that, by itself, really make them > unconstitutional? I distinguish between the exclusive rights of a copyright owner and the fundamental aspects of publication. Constitutionality depends on the use that is restricted. Presumably (and so far as I know this has not been tested in the context of copyright), uses which are now non-copyright uses (i.e. uses that are not listed in section 106 and are consequently not exclusive rights) may be protected rights under other parts of the U.S. Constitution. I've been saying from day one that I think the right to read after publication is a First Amendment issue. Private viewing of a movie is arguably in the same category. The fundamental properties of "publication" are not about use per se, but are general properties of publication. I'm not claiming expertise, but it seems to me that there are two central aspects of publication. 1. If you publish it, you can never "take it back". 2. The first-sale doctrine becomes available to the public after publication. Before publication, we have NDA's, violations of the right to privacy, etc. Those things don't apply after publication. Divx coupled with 1201(a) may violate both of these. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 11:15:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA30818 for dvd-discuss-outgoing; Tue, 11 Jul 2000 11:15:36 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA30815 for ; Tue, 11 Jul 2000 11:15:35 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id KAA10364 for ; Tue, 11 Jul 2000 10:14:04 -0500 Message-ID: <396B393C.AA2DEA17@mninter.net> Date: Tue, 11 Jul 2000 10:11:56 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <396A3A21.1BFECC27@mit.edu> <200007111251.IAA26526@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 > Wow. I've been assuming (and perhaps I'm not the only one) that the > Divx central systems actually kept track of which players were > entitled to view which titles. One of the problems with Divx was that if you bought one of their 4.95 landfill-tokens, used it, and brought it to your friends house, your friend would have to pay, too. Even if you were still within your 48-hour viewing period at home. I think, then, that Divx, then, is more like a movie theater than like publication. I have a feeling that the devolution of all publication into a bizarre form of movie theater-like protected semi-publication may or may not result from the DMCA, but it's not a possibility for the MPAA to pursue in the case of DVDs. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 11:37:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA32325 for dvd-discuss-outgoing; Tue, 11 Jul 2000 11:37:44 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA32322 for ; Tue, 11 Jul 2000 11:37:42 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id KAA13324 for ; Tue, 11 Jul 2000 10:36:11 -0500 Message-ID: <396B3E6A.92756462@mninter.net> Date: Tue, 11 Jul 2000 10:34:02 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "Divx" References: <200007111353.JAA11617@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Mr. Junger stated: > And isn't there a > nice class action potential for breach of contract, or implied > contract, or warranty, or something more creative, against the > vendors of DivX for discontinuing their service that has nothing to > do with the DMCA? There was no end of debate about this on the internet during Divx's brief existence. Unfortunately it was bandied about by people much like most of this list, save you, Mr. Junger, who're just a bit too removed from the workings of the law to actually know what they were talking about. I think at this point a legal action in light of Divx's downfall might be feasible (despite their "we are not responsible for interruptions in service" clause and "voluntary settlement" by offering refunds), but unlikely because of its limited acceptance by consumers. The class is too small to make a lawsuit worthwhile. I could be wrong. Incidentally, Circuit City did provide authorization, but made noise about the fact that the authorization was at the behest of the copyright owners. Consumers demanded that more Divx Silver-type disks be made available, but CC would just say "That is up to the copyright owner. We have no control over their decision." Meanwhile the copyright owner would make $3 a viewing for eternity, instead of one payment of $20. With, I might add, no guarantee that your disk was actually Silver forever. I've got no support for this, but I think that consumer's lackluster response to Divx was only one half of the reason for its demise... This was a bone headed corporate move by a lone consumer electronics company with distribution problems (their biggest competitor Best Buy would not sell Divx because CC pocketed a portion of every sale), with the potential for a giant class action lawsuit at the inevitable sunset of the program, and because CC themselves are a sub-par CE retailer with questionable management. They're no Microsoft, and hadn't anywhere near the clout to get this pushed through like a powerhouse might; they just had the support of the supply end because it stood to make them money. - - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWs+DTik9YADgV7kEQKWzQCbBGEsIGZi4PRw+sA9EBI8so2YCgYAoIkD CO7JCGmn67cOJxh/xsUceeZu =POVH -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:01:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00593 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:01:51 -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 MAA00590 for ; Tue, 11 Jul 2000 12:01:50 -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:2.21) with ESMTP id MAA12365 for ; Tue, 11 Jul 2000 12:00:37 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA10824; Tue, 11 Jul 2000 12:00:35 -0400 (EDT) Date: Tue, 11 Jul 2000 12:00:35 -0400 (EDT) Message-Id: <200007111600.MAA10824@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <396B393C.AA2DEA17@mninter.net> References: <396A3A21.1BFECC27@mit.edu> <200007111251.IAA26526@soggy-fibers.ai.mit.edu> <396B393C.AA2DEA17@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > > Wow. I've been assuming (and perhaps I'm not the only one) that the > > Divx central systems actually kept track of which players were > > entitled to view which titles. > > One of the problems with Divx was that if you bought one of their 4.95 > landfill-tokens, used it, and brought it to your friends house, your > friend would have to pay, too. Even if you were still within your > 48-hour viewing period at home. Hmmm... Jim Taylor's claim, which I was responding to, was (if I understood it right!) that if you bought one of their polycarbonate coasters, then no matter which players you put it in (or bit-for-bit copies of it, for that matter), the fees would always get charged to you. You're saying that's wrong --- that it *did* keep track of which players were authorized to view which titles (my interpretation of what's needed to be 1201(a) access control). Is there some definitive reference? (BTW, I've been referring to this scheme as "Circuit City Divx" to avoid confusion with the high-compression lossy codec, also called DivX, which has been floating around in some circles, and which the MPAA has cited as a technology which allows whole movies to be shipped around the net, or at least college dorm rooms, at will... I'm pretty sure most of the active participants in this discussion aren't confused, but I think it makes things a bit less confusing for people who are no to the discussion, or not following it closely). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:08:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00788 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:08:39 -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 MAA00785 for ; Tue, 11 Jul 2000 12:08:38 -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:2.21) with ESMTP id MAA13280 for ; Tue, 11 Jul 2000 12:07:25 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA12352; Tue, 11 Jul 2000 12:07:25 -0400 (EDT) Date: Tue, 11 Jul 2000 12:07:25 -0400 (EDT) Message-Id: <200007111607.MAA12352@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <200007111600.MAA10824@soggy-fibers.ai.mit.edu> References: <396A3A21.1BFECC27@mit.edu> <200007111251.IAA26526@soggy-fibers.ai.mit.edu> <396B393C.AA2DEA17@mninter.net> <200007111600.MAA10824@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: > confused, but I think it makes things a bit less confusing for people > who are no to the discussion, or not following it closely). ^^ new I seem to be developing delsyxia... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:11:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA00939 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:11:56 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA00935 for ; Tue, 11 Jul 2000 12:11:53 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id IAA02144 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 08:24:52 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Date: Tue, 11 Jul 2000 08:24:36 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <396A3A21.1BFECC27@mit.edu> <200007111600.MAA10824@soggy-fibers.ai.mit.edu> <200007111607.MAA12352@soggy-fibers.ai.mit.edu> In-Reply-To: <200007111607.MAA12352@soggy-fibers.ai.mit.edu> MIME-Version: 1.0 Message-Id: <0007110824491B.05357@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dyslexics of the world, untie. On Tue, 11 Jul 2000, you wrote: > Robert S. Thau writes: > > confused, but I think it makes things a bit less confusing for people > > who are no to the discussion, or not following it closely). > ^^ new > > I seem to be developing delsyxia... > > rst -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:24:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA01701 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:24:48 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA01698 for ; Tue, 11 Jul 2000 12:24:46 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA19386 for ; Tue, 11 Jul 2000 11:23:16 -0500 Message-ID: <396B4938.125B5159@mninter.net> Date: Tue, 11 Jul 2000 11:20:08 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <396A3A21.1BFECC27@mit.edu> <200007111251.IAA26526@soggy-fibers.ai.mit.edu> <396B393C.AA2DEA17@mninter.net> <200007111600.MAA10824@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 Read the Divx customer agreement, particularly sections 1 and 3, and you might find your answer. A Divx customer account was attached to the player. The player kept track of what discs were activated for that player (and presumably activated them for other players on that account... but don't ask me how). http://www.dvdresource.com/contributions/divxagreement.shtml -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:41:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02240 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:41:29 -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 MAA02237 for ; Tue, 11 Jul 2000 12:41:28 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CG1F>; Tue, 11 Jul 2000 09:40:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Circumvention and authority Date: Tue, 11 Jul 2000 09:40:10 -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: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] ... > A number of posters here on this list seems to hold great faith in the > success of an illegal tying case against the DVD industry in case it > is suggested that authority derives from both the player and the disc. > But I can't see why; is the tying legal argument really that reliable? > Check the archives for the postings where the full legal issues have been laid out and judge for yourself. -- -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 Jul 11 12:44:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02369 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:44:35 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA02366 for ; Tue, 11 Jul 2000 12:44:34 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id MAA14979 for ; Tue, 11 Jul 2000 12:43:21 -0400 Date: Tue, 11 Jul 2000 12:43:21 -0400 (EDT) From: Ole Craig To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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 07/11/00 at 01:10, 'twas brillig and Joshua Stratton scrobe: > > Well just as long as everyone has been granted access to the transcripts, > we ought to be ok ;) > > On Tue, 11 Jul 2000, Ole Craig wrote: > > > On 07/08/00 at 15:57, 'twas brillig and Leland Ray scrobe: > > > > > > Have the plaintiffs deposed anyone, and is a transcript available? > > > > They have. (Myself, and several others.) I sent mail to Ed > > Hernstadt asking if it was permissible to make public the transcript > > of my deposition, but he hasn't gotten back to me yet. (I have the > > feeling his schedule is, um, a tad hectic at the moment, so I'm not > > particularly miffed at this.) Hokay, if anyone's interested the transcript of my deposition is available at http://www.cs.umass.edu/~olc/pub/craig-depo.txt Please excuse my poor math on page 28. (I corrected the statement later in the deposition, FWIW.) Note to John Young and/or other archivists -- feel free to snarf this for collections of documents relating to the DVD case. Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 12:48:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02466 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:48:23 -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 MAA02463 for ; Tue, 11 Jul 2000 12:48:22 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CG18>; Tue, 11 Jul 2000 09:47:10 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CC9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] here is an idea for a defense Date: Tue, 11 Jul 2000 09:47:10 -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: Tuesday, July 11, 2000 5:41 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] here is an idea for a defense > > > David A. Wagner writes: > > > Well, the phrase "ordinary course of its operation" is > plastered all > > > over the DMCA, and licensed DVD players don't, in fact, provide > > > digital plaintext output in the ordinary course of their > operation, > > > > They may not provide the plaintext to you on a silver > platter, in the > > ordinary course of operation. Nonetheless, they _do_ > permit capture of > > it, if you actively dig for it. There is a difference. > > Ah, but that "active digging", if it goes so far as taking the covers > off (or using a debugger, for a software player) is not "the ordinary > course of [the player's] operation", and would probably be > circumvention in the minds of the plaintiffs... > The plaintext -is- produced in the ordinary course of the player's operation ... it is just not made easily available. Normally it just floats across a digital bus within the circuitry ... but it -does- get produced (in the normal course), and it -is- capturable if you have the right equipment. -- -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 Jul 11 12:48:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02474 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:48:26 -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 MAA02471 for ; Tue, 11 Jul 2000 12:48:25 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CG19>; Tue, 11 Jul 2000 09:47:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] here is an idea for a defense Date: Tue, 11 Jul 2000 09:47:16 -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: Jim Taylor [mailto:jtfrog@usa.net] ... > The CSS license, when referring to computers, specifically > requires that the > decrypted stream (post CSS, pre MPEG decode) be protected. > This may be what > Mr. Marks had in mind. There is a clear distinction in the > license between > unencrypted data streams and uncompressed data streams. But that is a licensing issue, not a technological 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 Tue Jul 11 12:51:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02565 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:51:24 -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 MAA02562 for ; Tue, 11 Jul 2000 12:51:16 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CGFF>; Tue, 11 Jul 2000 09:50:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 11 Jul 2000 09:50:03 -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 Taylor [mailto:jtfrog@usa.net] ... > > >Divx is an important counterexample here. With Divx, stolen players > >don't work (you don't have the Divx account that makes them work) and > >stolen disks don't work > > Technical correction. Stolen discs work fine. Your Divx > account is billed > just as if you had bought the disc. Again, there is no way > for the player > (or the mainframe computer, if the disc was not played before > it was stolen) > to tell the difference between a purchased disc and a stolen > disc. That's > why the point of sale argument seems silly to me. The whole point of Divx was that point of sale was not where the transfer of authority took place. Purchase of the -keys- was. This is why the stolen Divx works on your machine IF AND ONLY IF you purchase a key. No rights or permissions adhere to the disc itself. > > Ironically, pirated discs work as well. Pirated Divx discs > would also be > billed to your account, while the pirate saved DVE the > trouble and expense > of replicating the disc. > A wonderful benefit from the POV of the distributers. -- -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 Jul 11 12:52:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02607 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:52:51 -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 MAA02604 for ; Tue, 11 Jul 2000 12:52:48 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CGF2>; Tue, 11 Jul 2000 09:51:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 11 Jul 2000 09:51:37 -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: Jeremy Erwin [mailto:jerwin@gmu.edu] > Sent: Monday, July 10, 2000 8:22 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > > > > > 7. Lawsuits are filed, and the dvd-discuss group, in > > > promulgating the first > > > sale doctrine, argues that DiVX had a better claim to Chapter > > > 12 protection. > > > > > > >It -did- have better claim to 1201 protection ... but it > >-didn't- perform well in the marketplace (primarily due > >to those privacy issues as far as I can tell) > > > >So what's your point? > > Be careful what you wish for. Obviously, if the successor to DVD is > based on a pay per use system, whereby the key to the heavily > encrypted disc is rented to the consumer, contingent on the > electronic signing of a usage contract, the conduct currently > protected under "fair use" will suffer. Legally, such a system might > be above board, but morally? > Whaddya mean "what I wish for"? I don't -wish- for a Divx style system. I just believe that it was a valid system under the law. Valid does not mean "good". It certainly wasn't marketable in the long run. And where does morally come into this? Don't go there, it gets really messy... -- -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 Jul 11 12:58:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA02777 for dvd-discuss-outgoing; Tue, 11 Jul 2000 12:58:43 -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 MAA02774 for ; Tue, 11 Jul 2000 12:58:42 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CGFW>; Tue, 11 Jul 2000 09:57:33 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 11 Jul 2000 09:57:32 -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: Tuesday, July 11, 2000 9:01 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > Chris Moseng writes: > > > Wow. I've been assuming (and perhaps I'm not the only > one) that the > > > Divx central systems actually kept track of which players were > > > entitled to view which titles. > > > > One of the problems with Divx was that if you bought one > of their 4.95 > > landfill-tokens, used it, and brought it to your friends > house, your > > friend would have to pay, too. Even if you were still within your > > 48-hour viewing period at home. > > Hmmm... Jim Taylor's claim, which I was responding to, was (if I > understood it right!) that if you bought one of their polycarbonate > coasters, then no matter which players you put it in (or bit-for-bit > copies of it, for that matter), the fees would always get charged to > you. You're saying that's wrong --- that it *did* keep track of which > players were authorized to view which titles (my interpretation of > what's needed to be 1201(a) access control). > > Is there some definitive reference? > > (BTW, I've been referring to this scheme as "Circuit City Divx" to > avoid confusion with the high-compression lossy codec, also called > DivX, which has been floating around in some circles, and which the > MPAA has cited as a technology which allows whole movies to be shipped > around the net, or at least college dorm rooms, at will... I'm pretty > sure most of the active participants in this discussion aren't > confused, but I think it makes things a bit less confusing for people > who are no to the discussion, or not following it closely). > > rst > I don't think that the central servers kept track of which machine could play which disc ... although that is certainly possible. To reduce the load they would probably have the machines themselves "remember" which discs had been paid for through them. Which left a couple of holes in the system: what happened when I bought a new machine because the old one broke? Or a power outage? Perhaps when you bought one an account was set up and the machine was configured to that account information somehow ... and it could update itself from central if it lost it's memory ... but I am merely speculating out loud now ... did anybody on this list actually own one of these beasts? If so: how did it work? --- completely separate personal side question --- Does anybody know what the terms "for personal use only" mean in the legal sense? If I am allowed to take photographs of an event "for personal use only" I figure I am -not- allowed to sell them ... but am I allowed to -give- them to other people? to post them on my -personal- web page? -- -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 Jul 11 13:07:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02998 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:07:54 -0400 Received: from fort-point-station.mit.edu (FORT-POINT-STATION.MIT.EDU [18.72.0.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02995 for ; Tue, 11 Jul 2000 13:07:53 -0400 Received: from grand-central-station.MIT.EDU (GRAND-CENTRAL-STATION.MIT.EDU [18.69.0.34]) by fort-point-station.mit.edu (8.9.2/8.9.2) with ESMTP id NAA26344 for ; Tue, 11 Jul 2000 13:06:40 -0400 (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 NAA28051 for ; Tue, 11 Jul 2000 13:06:40 -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 NAA25851 for ; Tue, 11 Jul 2000 13:06:39 -0400 (EDT) Received: (from sethf@localhost) by oobleck.mit.edu (8.9.3) id NAA08785; Tue, 11 Jul 2000 13:06:39 -0400 (EDT) Date: Tue, 11 Jul 2000 13:06:39 -0400 (EDT) Message-Id: <200007111706.NAA08785@oobleck.mit.edu> From: Seth Finkelstein To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: [dvd discuss] amicus brief for trial? In-Reply-To: <200007111335.JAA11492@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" > Aren't there cases, long before the DMCA, where programmers who put > logic bombs in their programs were convicted. Yes, but that was in the days before UCITA. Now it's called "self-help" http://www.badsoftware.com/shelp.htm Interestingly: "For independent programmers (small licensors most likely to need to resort to self-help), the rules are so technical that they will probably get into trouble even if they act in good faith." ------------------------------------------------------------------------ Seth Finkelstein Consulting Programmer sethf@mit.edu http://sethf.com ------------------------------------------------------------------------ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:10:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03274 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:10:22 -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 NAA03253 for ; Tue, 11 Jul 2000 13:10:21 -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:2.21) with ESMTP id NAA22153 for ; Tue, 11 Jul 2000 13:09:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA26070; Tue, 11 Jul 2000 13:09:07 -0400 (EDT) Date: Tue, 11 Jul 2000 13:09:07 -0400 (EDT) Message-Id: <200007111709.NAA26070@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CCD@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CCD@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Does anybody know what the terms "for personal use only" > mean in the legal sense? If I am allowed to take photographs > of an event "for personal use only" I figure I am -not- > allowed to sell them ... but am I allowed to -give- them > to other people? to post them on my -personal- web page? One non-lawyer's guess: I've been taking it to mean "for private performance only" --- not so much a license condition as an assertion that the copyright holders have an exclusive right to authorize public peformance (something they're already given by the law, and don't need to negotiate a contract, such as a license agreement, to get). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:14:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03839 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:14:24 -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 NAA03836 for ; Tue, 11 Jul 2000 13:14:23 -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:2.21) with ESMTP id NAA22898 for ; Tue, 11 Jul 2000 13:13:10 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA27105; Tue, 11 Jul 2000 13:13:09 -0400 (EDT) Date: Tue, 11 Jul 2000 13:13:09 -0400 (EDT) Message-Id: <200007111713.NAA27105@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] here is an idea for a defense In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CC9@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CC9@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > The plaintext -is- produced in the ordinary course > of the player's operation ... it is just not made > easily available. My point. > Normally it just floats across > a digital bus within the circuitry ... but it -does- > get produced (in the normal course), and it -is- capturable > if you have the right equipment. But I think plaintiffs believe that the *use* of those tools is circumvention, and barred by the law except for the specific exceptions spelled out in 1201(a) (though the tools themselves probably don't fall under the trafficing ban because they have significant commercial use for another purpose). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:18:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03893 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:18:19 -0400 Received: from dial75.roadrunner.com (sf-du75.cybermesa.com [209.12.75.75]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA03890 for ; Tue, 11 Jul 2000 13:18:14 -0400 Received: (from paul@localhost) by dial75.roadrunner.com (8.8.7/8.8.7) id LAA00925 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 11:17:43 -0600 Date: Tue, 11 Jul 2000 11:17:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available Message-ID: <20000711111741.B576@localhost> References: <20000710152506.B2309@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Mon, Jul 10, 2000 at 11:02:07PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu My main objective was to show that trying to make a distinction between "consumer" or "home" users and "industrial duplicators" doesn't make sense in the context of 1201(a). 1201(a) isn't about infringement (this is what the judge says half the time. The other half the time he calls 1201(a) "prophylactic", presumably to copyright infringement. Go figure.) The real issue is what tools are available to people, and the capabilities of those tools. Whether or not someone is a consumer is not relevant, in and of itself, to whether they can make copies or what kind of copies they can make (as a technical matter, not legal). What the plaintiff's want to do is tie those two disparate aspects of 1201: copying in 1201(b) and access control in 1201(a). The license to the 1201(a) access-control measure is used to enforce terms of rights control. Whether the MPAA and DVD-CCA work together to this end or not might be an issue for the court examine. The key point is that the licensing of a 1201(a) measure is being used by a private party to effectively write their own "copyright" laws that are far more Draconian than even 1201(b). On Mon, Jul 10, 2000 at 11:02:07PM -0700, Jim Taylor wrote: > Paul Fenimore, on Monday, July 10, 2000 2:25 PM, writes: > >But this is a media-specific claim. For the sake of argument, let's take > >the P's claim that "internet transmission is viable" is correct. > > But they claim only that Internet transmission of *circumvented* content is > viable. OK, they've adjusted their claims to talk about MPEG-4 video files, which in their examples where much smaller than the VOB files. But initially it was the unencrypted VOB files that they said were going to be shipped around. Those unencrypted files are essentially the same size as the encrypted VOB files. While they've adjust their claims of what can be transmitted now, so as to address the issue of immediate harm, clearly they are still concerned about the prospect, 5 or 10 years from now, of people shipping unencrypted VOB's around. My point is that one can just as easily ship the encrypted VOB, it has essentially the same size as the unencrypted file. > >Transmit a disk image electronically. This is playable using a drive > >emulator and the disk image. (I'm not saying an appropriate drive > >emulator exists). > > An image-maker does not exist either. All software I'm aware of would not > copy the key block, so the image would not play on an emulator. I though css-auth would dump this lead-in area. I don't have a DVD drive to test with, but after looking at the source, it seems that you are correct. One of the programs in css-auth would have to be modified to dump the lead-in. Then dd can retrieve the rest of the disk image. > In theory, > an image-maker could be written that reads the lead-in area of the disc so > that everything that is needed for CSS decryption is included in the image. > This would be little different than a bit-for-bit pirated copy. However, in > order to create the appropriate drive emulator, one would have to include > the drive's portion of the CSS algorithm, which the DVD CCA claims can only > be used under license. Yes, the software driver would have to emulate the physical drive to interoperate with a DVD-CCA licensed software player. That would make my example somewhat more complex. I think the real point of these examples is that descrambling and playing the contents of a DVD comes before -or- after copying, and that the before or after aspect applies to everyone. The consumer vs. industrial distinction is artificial. The DVD-CCA and MPAA claim that CSS prevents unauthorized copying, or prevents _some_ unauthorized copying. I say this is wrong. Something which can come either before or after the copying is not preventing copying. On the other hand, making a copy to descramble is unavoidable. The disk is read-only, so the data needs to be copied to a writable memory area to process it. > >All the claimed "piracy control" features of CSS stem from the licensing > >agreements that dictate the way in which a player will operate. The control > >features are not a result of CSS as a crypto system. > > Agreed -- it's the license that implements all the restrictions. The crypto > system is simply a sufficiently complex technological protection mechanism > that it's covered under the DMCA. I don't see any explicit thing in section 1201 which requires a mechanism to be complex to receive legal protection. Furthermore, I don't think the statute has an explicit mechanism to distinguish something utterly ineffective in a technical sense, like a caesar cipher, from Twofish. Both have a key, so even a reading which would exclude gzip from the class of "effective" measures would not exclude rot13. IANAL, so perhaps there is a general principle that would exclude rot13, but I don't know what it is. > >I think the media-specific claims are very suspect -- they assume that > >the copyright owners will exert some control over the player and/or > >media markets. > > It's worth mentioning that the CSS license requires a separate protection > system such as DTCP when the content is separated from the media and the > player. My apologies, but I don't know what the acronym DTCP means. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:22:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA03987 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:22:13 -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 NAA03983 for ; Tue, 11 Jul 2000 13:22:12 -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:2.21) with ESMTP id NAA23876 for ; Tue, 11 Jul 2000 13:20:59 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA28991; Tue, 11 Jul 2000 13:20:59 -0400 (EDT) Date: Tue, 11 Jul 2000 13:20:59 -0400 (EDT) Message-Id: <200007111720.NAA28991@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <396B4938.125B5159@mninter.net> References: <396A3A21.1BFECC27@mit.edu> <200007111251.IAA26526@soggy-fibers.ai.mit.edu> <396B393C.AA2DEA17@mninter.net> <200007111600.MAA10824@soggy-fibers.ai.mit.edu> <396B4938.125B5159@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Read the Divx customer agreement, particularly sections 1 and 3, and you > might find your answer. > > A Divx customer account was attached to the player. The player kept > track of what discs were activated for that player (and presumably > activated them for other players on that account... but don't ask me > how). > > http://www.dvdresource.com/contributions/divxagreement.shtml Yep, and that is consistent with what Jim was saying. My bad. (The relevant text, for the curious: You will incur charges to your Divx Account if: - a limited play Divx Disc is replayed for a subsequent viewing period on a Player registered to your Divx Account; a limited play Divx Disc is converted to a DivxSilver Disc on a Player registered to your Divx Account; a Divx Disc is ordered for purchase through a Player registered to your Divx Account; or other products or services are ordered or purchased either through a Player registered to your Divx Account or through the Divx web site or by telephone to Divx. So accounts are associated with players, and the Divx technological mechanism as a whole keeps track of which players are authorized to view which discs; it isn't explicit about whether it is the player or the central systems which do the tracking, but it doesn't make much difference to my analysis either way). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:31:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04209 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:31:57 -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 NAA04206 for ; Tue, 11 Jul 2000 13:31:55 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA05125 for ; Tue, 11 Jul 2000 13:30:41 -0400 (EDT) Date: Tue, 11 Jul 2000 13:30:41 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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, 11 Jul 2000, Ole Craig wrote: > > Hokay, if anyone's interested the transcript of my deposition > is available at > > http://www.cs.umass.edu/~olc/pub/craig-depo.txt > Wow, they sure seem to be asking for a lot of legal opinions. I think the're trying to set Mr. Craig up for a smear job. "Mr. Craig, the so-called expert on computer networking, believes that this Napster, this networking system designed purely for the benefit of common thieves and cutthroat pirates, is perfectly legal..." Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:39:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04365 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:39:15 -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 NAA04361 for ; Tue, 11 Jul 2000 13:39:13 -0400 Received: from localhost (jerwin@localhost) by mason2.gmu.edu (8.8.8/8.8.8) with ESMTP id NAA00846 for ; Tue, 11 Jul 2000 13:38:00 -0400 (EDT) Date: Tue, 11 Jul 2000 13:37:59 -0400 (EDT) From: Jeremy A Erwin X-Sender: jerwin@mason2.gmu.edu To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CCC@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 Tue, 11 Jul 2000, Richard Hartman wrote: > And where does morally come into this? Don't go there, > it gets really messy... Shorthand for various doctrines such as "fair use," independent of their actual application in law. I believe that such a term is appropriate, since many of the arguments for copyright are couched in such stirring phrases as "the moral rights of the author." But this subthread has outlived its usefulness. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 13:56:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA04880 for dvd-discuss-outgoing; Tue, 11 Jul 2000 13:56:59 -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 NAA04877 for ; Tue, 11 Jul 2000 13:56:58 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6BHthC07265 for ; Tue, 11 Jul 2000 20:55:43 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Tue, 11 Jul 2000 20:55:42 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" In-Reply-To: <3967CF29.BD2BF0C0@mninter.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 8 Jul 2000, Chris Moseng wrote: >> What does the acronym "PPU" mean? > >Pay-Per-Use. Were you Finnish, you would remember it as 'puppu', roughly translated as baloney. ;) Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:01:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05059 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:01:09 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05055 for ; Tue, 11 Jul 2000 14:01:02 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA31897 for ; Tue, 11 Jul 2000 12:59:27 -0500 Message-ID: <396B5F68.528183B6@mninter.net> Date: Tue, 11 Jul 2000 12:54:48 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Ole Craig wrote: > Hokay, if anyone's interested the transcript of my deposition > is available at I feel safe saying that everyone's interested, Ole. I think you handled yourself well. Thanks for subjecting yourself to the interrogation. In light of all the questions regarding what you thought was and was not legal, one might imagine where they are headed. I was scheduled to be deposed by the plaintiffs on June 30th, but because I will not be called as a witness the deposition was abandoned. Among the requests for production were: "22. All documents concerning any incidents in which you have been accused of violating any person's intellectual property rights." Not convicted, not judged, just accused. Nothing but a hopeful smear tactic (and a poor one), in my opinion. Let me guess, the MPAA will soon release a press statement and "accuse all the defendant's witnesses of violating intellectual property rights, thereby calling into question their credibility in the court and in public." Thats on their to-do list right under "disauthorize all brown-eyed people from watching movies that start with the letter 'F' on RCA DVD players." - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWtfZjik9YADgV7kEQJKrQCg9sC4y6pIEdt0pc7qu8Fhreu5YdYAoMIJ nV0f3+kIXgWq2umMNQTGq6UJ =9ZGt -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:04:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05223 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:04:47 -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 OAA05219 for ; Tue, 11 Jul 2000 14:04:47 -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 OAA26545 for ; Tue, 11 Jul 2000 14:03:32 -0400 (EDT) Message-Id: <4.2.2.20000711133958.00e0f100@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 11 Jul 2000 14:03:34 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] here is an idea for a defense In-Reply-To: <8keatf$pnn$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> <200007110346.XAA23689@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:21 PM 7/10/00 -0700, David A. Wagner wrote: >Robert S. Thau wrote: > > David A. Wagner writes: > > > Wendy Seltzer wrote: > > > > Plaintiffs want to say, as Dean Marks candidly stated in the > > > > Stanford hearings, that the only player that operates "with the > > > > authority of the copyright owner" is one that does not permit > > > > capture of an unencrypted data stream. > > > > > > I would be curious to hear what one might mean by such a position. > > > The issue I'm thinking of is that, technologically speaking, _every_ > > > player permits capture of the unencrypted data stream, so unless the > > > requirement is qualified somehow, it is absurd. > > > > Well, the phrase "ordinary course of its operation" is plastered all > > over the DMCA, and licensed DVD players don't, in fact, provide > > digital plaintext output in the ordinary course of their operation, > >They may not provide the plaintext to you on a silver platter, in the >ordinary course of operation. Nonetheless, they _do_ permit capture of >it, if you actively dig for it. There is a difference. > >I don't know which meaning Dean Marks intended, though. I'm just going >by Wendy Selzter's paraphrasing. Does anyone have a pointer to Dean Marks' >full comments in context? is Dean Marks, testifying for Time Warner and the MPAA. At 185-186 he describes the use of an encryption carrot to get hardware manufacturers to implement copy protection technologies, and at 237-259 describes the CSS scheme in more detail. Here's an excerpt: (I include the top paragraph as a nice concession that DVD purchasers don't know of the restrictions on their use rights). PAGE 242 1 Because when you put your DVD into your 2 DVD player, or your DVD computer, in most 3 circumstances you just press "Play" and the disk 4 plays. So you don't even necessarily realize that 5 it's encrypted, but the disks are encrypted. 6 Those devices, whether they be players 7 or personal computers or the Sony PlayStation who 8 would like to have their devices be able to display 9 and play back those DVD disks need to get a license 10 to be able to decrypt the CSS encryption system. 11 They do that by going to the DVD-CCA and applying 12 for a CSS license. 13 That CSS license gives them the keys and 14 tools to be able to decrypt the disks. It also 15 imposes certain conditions on what the device can do 16 with the content once it is decrypted. One of those 17 obligations, for example, is that the content is not 18 allowed to flow out in the clear on a digital 19 output. 20 Another example of an obligation is that 21 the device has to insert Macrovision on content 22 before it goes out the analog output. So by this 23 combination of encryption technology and licensing, 24 you have really a structure that involves access 25 control and copy protection. The whole colloquy between Marks and Carson of the Copyright Office is informative, including 8 MR. CARSON: And I'm not sure you've got 9 the wrong balance there, philosophically. But just 10 looking at the scheme we have in Section 1201, 11 Congress made the judgment that it was not going to 12 make it unlawful for an individual to circumvent the 13 technological measure that controls the use of a 14 work. Copying and so on. 15 It did make the judgment that it would 16 make it unlawful to circumvent a technological 17 measure that controls access to a work. And again, 18 isn't this access control measure -- CSS that you're 19 talking about -- a measure that is really designed 20 as its end, not to control access but to control the 21 use, by channeling you to that device whose purpose 22 is to control use? Suggesting a revisit to "access is binary" -- you have it or you don't, but authorization to access can't be conditioned on how you'll use the data after you get access. --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 Tue Jul 11 14:12:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05551 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:12:17 -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 OAA05548 for ; Tue, 11 Jul 2000 14:12:11 -0400 Received: from jy01 (user-2inigu6.dialup.mindspring.com [165.121.67.198]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id OAA09107 for ; Tue, 11 Jul 2000 14:10:53 -0400 (EDT) Message-Id: <200007111810.OAA09107@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 11 Jul 2000 14:03:12 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Kaplan Denies Trial Delay In-Reply-To: <8keatf$pnn$1@blowfish.isaac.cs.berkeley.edu> References: <000f01bfe775$9e2862e0$87ce0593@ia.nsc.com> <4.2.2.20000710114628.00a93980@pop.bellatlantic.net> <8ke0en$pk2$1@blowfish.isaac.cs.berkeley.edu> <200007110346.XAA23689@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu From: http://www.nysd.uscourts.gov/courtweb/pdf/00-06894.PDF UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - x UNIVERSAL CITY STUDIOS, INC., et al., Plaintiffs, -against- 00 Civ. 0277 (LAK) SHAWN C. REIMERDES, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ORDER LEWIS A. KAPLAN, District Judge. Defendants’ latest application to adjourn the trial, made by letter dated July 5, 2000, is denied. There has been no showing that defendants, despite due diligence on their part and an appropriate deployment of their resources, would be prejudiced in any definable way by adherence to the current trial schedule, of which they have been on notice for a substantial period of time. To whatever extent they find themselves under genuine time pressure, the problem is largely of their own making, as they have devoted effort to matters that may be of interest to those that visit their web site, but that have little or no utility in resolving the legal issues in dispute in this case. Moreover, after defendants gained access to plaintiffs’ privileged documents pursuant to an arrangement specifically designed to enable the case to be tried beginning on July 17, it manifestly would be unjust and inequitable to grant their request. SO ORDERED. Dated: July 10, 2000 _______________________________________ Lewis A. Kaplan United States District Judge From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:14:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05636 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:14:09 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05633 for ; Tue, 11 Jul 2000 14:14:08 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id OAA17616 for ; Tue, 11 Jul 2000 14:12:55 -0400 Date: Tue, 11 Jul 2000 14:12:55 -0400 (EDT) From: Ole Craig To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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 07/11/00 at 13:30, 'twas brillig and Jeremy A Erwin scrobe: > Date: Tue, 11 Jul 2000 13:30:41 -0400 (EDT) > From: Jeremy A Erwin > Reply-To: dvd-discuss@eon.law.harvard.edu > To: "'dvd-discuss@eon.law.harvard.edu'" > Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? > > On Tue, 11 Jul 2000, Ole Craig wrote: > > > > > Hokay, if anyone's interested the transcript of my deposition > > is available at > > > > http://www.cs.umass.edu/~olc/pub/craig-depo.txt > > > Wow, they sure seem to be asking for a lot of legal opinions. I think > the're trying to set Mr. Craig up for a smear job. > > "Mr. Craig, the so-called expert on computer networking, believes that > this Napster, this networking system designed purely for the benefit of > common thieves and cutthroat pirates, is perfectly legal..." There was actually quite a heated exchange between Ed Hernstadt (who seems normally to be quite pleasant and easygoing) and Mr. Hart after the latter tried to bully me into saying what he wanted me to say about napster. It's near the end of the transcript, and the written words sans inflection don't do Ed justice. (Erm, pardon the pun.) In essence, Hart seemed to be trying to get me to agree with a statement like "The fact that MP3's involve lossy compression does not deter people from using Napster" and he [Hart] was getting riled by my calm replies to the effect that A) Napster does not of itself dictate compression of any kind, and B) people using lossy compression have obviously already decided that the utility/fidelity tradeoff is acceptable. Ed laid into him beautifully for trying to lean on me; it was quite satisfactory to behold. :-) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:30:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06127 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:30:40 -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 OAA06123 for ; Tue, 11 Jul 2000 14:30:39 -0400 Message-ID: <20000711182846.19755.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Tue, 11 Jul 2000 11:28:46 PDT Date: Tue, 11 Jul 2000 11:28:46 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? 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 Wow. Great job Ole! You slammed him on the point about lossy compression not facilitating file transfer because you couldn't recover the original. Obviously he was pissed off that you didn't give the answer he wanted. I hope you were smiling wildly while he was ranting. Nice speech at the end about fair use, too, by the way. We've been assuming they've been reading this list, but now I'm not so sure. They seemed only vaguely aware of it. What was all that stuff about if Ed gave you advice on what to bring? So what? It's not like everything you were talking about isn't online anyway. --- Ole Craig wrote: > Hokay, if anyone's interested the transcript of my deposition > is available at > > http://www.cs.umass.edu/~olc/pub/craig-depo.txt __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:41:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06628 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:41:07 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA06625 for ; Tue, 11 Jul 2000 14:41:03 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA04612 for ; Tue, 11 Jul 2000 13:39:24 -0500 Message-ID: <396B68A8.A60E4FFD@mninter.net> Date: Tue, 11 Jul 2000 13:34:16 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? References: <20000711182846.19755.qmail@web509.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 > What was all that stuff about if Ed gave you advice on what to bring? > So what? It's not like everything you were talking about isn't online > anyway. I'm not speaking for Ole, here, but for myself: The plaintiffs, in their document request attached to the subpoena, requested many, many categories of documents. 26, in my case. My understanding of many of those categories of requests, is that I cannot be compelled to provide them, but if I do the plaintiffs can obviously make use of them. Specifically, they include communications with the defense team and preliminary drafts of the declaration. So, had I been deposed, I would have clarified with the defense team what exactly I was compelled to bring, and what was actually optional. What Ole did, and whether my intuition is correct, I don't know. Unless the defense has objections, I might make my supboena public for interested parties to examine. Not exactly as riveting as Ole's testimony, but a curiosity. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWtopzik9YADgV7kEQKeQACg7zhRbzZBnclbI5NGK0paENFRhk0AoNil U/D8WMKjkd9V9lILv+9BNhX0 =DTUS -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:45:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06745 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:45:42 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA06742 for ; Tue, 11 Jul 2000 14:45:41 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id OAA18524 for ; Tue, 11 Jul 2000 14:44:28 -0400 Date: Tue, 11 Jul 2000 14:44:28 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? In-Reply-To: <396B5F68.528183B6@mninter.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 07/11/00 at 12:54, 'twas brillig and Chris Moseng scrobe: > > I was scheduled to be deposed by the plaintiffs on June 30th, but > because I will not be called as a witness the deposition was abandoned. > Among the requests for production were: "22. All documents concerning > any incidents in which you have been accused of violating any person's > intellectual property rights." I'm sorry to hear you won't be called as a witness. I was actually looking forward to meeting you. > Not convicted, not judged, just accused. Nothing but a hopeful smear > tactic (and a poor one), in my opinion. Let me guess, the MPAA will soon > release a press statement and "accuse all the defendant's witnesses of > violating intellectual property rights, thereby calling into question > their credibility in the court and in public." Thats on their to-do list > right under "disauthorize all brown-eyed people from watching movies > that start with the letter 'F' on RCA DVD players." Urk. Guess I'd better go get colored contacts. Oh, wait -- would that be circumvention tech? One other thing about this whole mess concerns me: here we've got an heroic struggle of the people against the overbearing corporatists... Who's going to make a movie about it? And how will I watch it if it comes out? :-) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 14:53:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07543 for dvd-discuss-outgoing; Tue, 11 Jul 2000 14:53:36 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07540 for ; Tue, 11 Jul 2000 14:53:34 -0400 Received: from ppp.anonymizer.com (c05-157.015.popsite.net [64.24.76.157]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA18194 for ; Tue, 11 Jul 2000 11:54:31 -0700 (PDT) Message-Id: <4.3.2.7.2.20000711114536.00b10ce0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 11 Jul 2000 11:53:28 -0700 To: From: "James S. Tyre" Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? In-Reply-To: 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 At 12:43 PM 7/11/2000 -0400, Ole Craig wrote: > Hokay, if anyone's interested the transcript of my deposition >is available at > > http://www.cs.umass.edu/~olc/pub/craig-depo.txt Nice job, you handled yourself well, especially considering that you were a virgin. ;-) I've both taken and defended depositions where "veteran" deponents did less well. Your transcript actually is a good example of how deponents should listen to questions carefully, ask for clarification when needed instead of assuming, not allowing one's self to be led down a path (unless the path happens to be that of the facts). My compliments, from someone who's done many hundreds of these things. -------------------------------------------------------------------- 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 Tue Jul 11 15:46:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA08242 for dvd-discuss-outgoing; Tue, 11 Jul 2000 15:46:52 -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 PAA08239 for ; Tue, 11 Jul 2000 15:46:50 -0400 Message-ID: <20000711194507.2991.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 11 Jul 2000 12:45:07 PDT Date: Tue, 11 Jul 2000 12:45:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Streambox 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 --- Chris Moseng wrote: > Bryan said: > > This is sort of like you saying > > that because you entered a theater and saw the slide-show ads and > > trailers that you can use your cam-corder. In fact, you don't even > > get free admission to watch the exact same thing a second time. > > Think of the realplayer as a movie theater with free admission. > > To be frank, this is baloney. Your anaolgy is pure misdirection, and > I would hope you know why. Obviously I think it's a decent analogy or I wouldn't have stated it. If you want to argue against it, please do. You would have to do better than claiming "baloney" if you were in Court. > Robert Thau's invocation of Betamax is a pretty good refutation of > your position, so I'll just add a few things. I've read the Betamax decision several times and have select excerpts posted on my site. I don't think it refutes my position, and it didn't stop the injunciton against Streambox. The arguement in Betamax can be distinguished easily: (1) Copying here is not necessary for "time-shifting" -- the concept doesn't even make sense in an internet (non-broadcast) setting. The necessity of copying for time-shifting is the foundation of the substantial non-infringing use of a VCR. (2) Sony depended on the fact that some copyright owners existed who supported recording of their works. This is not the case among those who have checked "no" on the copy-bit. (3) The holding in Betamax was explicitly based on the observation that Congress had not "clearly marked the course" as Betamax was a case about contributory copyright infringement, which lacks specific statuory recognition. Streambox was a 1201 case that does not suffer from this. > I don't want to go around and around on this, because I think it's > pretty clear you're mistaken. Isn't it fair to ask for you to state WHY it's clear? After all Streambox lost in Court. > Copyright holders have not been granted by copyright or 1201 the > right to hinder all non-infringing use a priori just because > infringing uses are possible. [...] I've made the arguement that NO fair uses exist that involve exact copies in entirety of artistic works when no claim of fair compensaton is available. These are factors (2),(3), and (4) of the four part calculus of "fair use". It seems like you should at least provide some attempt to counter this reasoning. > If you don't want people to make use of your work, you don't publish. Does RealNetworks "publish"? I don't think this is established. They essentially extend their VPN to you. > If you do publish, people have the right to make non-infringing use > without your input or prior restraint as a copyright holder. I agree with this statement. > I can walk into a movie theater, having paid, close my eyes and ears > until the movie starts, and still watch the movie. Heck, even using a > camcorder in a movie theater isn't *necessarily* illegal, and it > shouldn't be hindered a priori. The importance of such applications are de minimus. A good case on a very similar situation is ZACCHINI v. SCRIPPS-HOWARD BROADCASTING CO. 433 U.S. 562 (1977), where a *news* broadcast of the entire 15 second "human canonball" act was found to be infringement. See http://caselaw.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=433&page=562 > In the end, there is no bookstore, there is no movie theater, and > there are no "requirements" to justify access to the work aside > from the strictly technological limitation that Real Audio is > the only software that will play back the file. Hmmm. It would be a different discussion altogether if Streambox had written software that respected the copy-bit. They might have a 1201(f) claim then. But you seem to be in denial that the DMCA is law. There certainly are places where I think it is on shaky Constitutional ground, but I can't formulate any of the them in such a way that helps Streambox. > If someone were out on the street shouting in a > foriegn language, I have just as much a right to use my own > translator as the one they insist on selling to me, regardless > of their financial connection to that player. I would probably agree with you until commerce takes place between you and the translator or as a result of your translation. At that point, like it or not, you're under the regulatory power of the Constitution's commerce clause as it's been interpreted since the New Deal. If you want to return to pre-New Deal jurisprudence, then you've got a lot more legal obstacles than just the DMCA. > Publish and accept the rights and limitations of copyright, or keep > it to yourself. One could argue that the DMCA creates a form of "semi-publishing" that is somewhere in between these. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:01:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08545 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:01:59 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08542 for ; Tue, 11 Jul 2000 16:01:57 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <349C58FR>; Tue, 11 Jul 2000 16:05:10 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E2E@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Have the Plaintiffs deposed anyone? Date: Tue, 11 Jul 2000 16:05:09 -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 That exchange is one of the key points of the deposition, for a number of reasons. First of all, the P's think they have nailed the facts and are more interested in damages, or showing of harm. Secondly, their questions point to fear of the internet. Addressing that fear would help in understanding the moral issues of the case. The history of literature and technology (among other things, I was a religious studies major and read a lot of very old stuff) suggests the individuals who experience the work -- the reader -- gets more and more abilities as a result of technology. Those abilities always outstrip that of the producer to control the presentation. For instance, before kings could read, scribes used to write each other out of band correspondence in the letters. The scribes were able to control the presentation of the work to the king. Now we all read, and the writer cannot control how the words are presented. Some people will see my name on this note, and skip to the end first. Others will read each word in order. Others will skim it. Others will make a decision when to read it depending on the thread. Still others will ignore it. It is up to me to make my words as interesting as possible to get the largest possible audience. It used to be that the only place to see a movie was a theater. The movie studios had full control over how and when the movie was shown. Now people buy videotapes, and the studios cannot tell you when or how to view the movie. It is very hard to charge for "degree of use" when some people who buy the videotape have an 80 inch projection TV with surround sound, and others have a 12 inch b/w TV they bought at a garage sale. Now we have the internet, and it is now possible -- 1) to use the net to promote movies, and 2) for individuals to add clips or examples to their critiques. This changes the degree of use. Is this bad? Well, for whom? I suppose some people will rudely excerpt the nude scenes, or the tearful confession of the butler. But I suspect many more will promote an aspect of films they are interested in -- "look how well xxx did with editing this scene" and the like. Can the internet be used to pirate movies? Right now, it is slow and crude. But in the long run, the internet will be used like a car trunk is used for transport. Some people put their camping gear in the trunk, others fill it with cocaine. Shall we ban trunks? -----Original Message----- From: Ole Craig [mailto:olc@cs.umass.edu] Sent: Tuesday, July 11, 2000 2:13 PM To: 'dvd-discuss@eon.law.harvard.edu' Subject: Re: [dvd-discuss] Have the Plaintiffs deposed anyone? and he [Hart] was getting riled by my calm replies to the effect that A) Napster does not of itself dictate compression of any kind, and B) people using lossy compression have obviously already decided that the utility/fidelity tradeoff is acceptable... From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:10:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08878 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:10:39 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08875 for ; Tue, 11 Jul 2000 16:10:31 -0400 Received: from Debug (IDENT:nobody@mail.swdata.com [208.142.244.17]) by mail.swdata.com (8.9.3/8.8.7) with SMTP id PAA16618 for ; Tue, 11 Jul 2000 15:08:58 -0500 Message-Id: <200007112008.PAA16618@mail.swdata.com> To: dvd-discuss@eon.law.harvard.edu From: Chris Moseng Subject: [dvd-discuss] The fatal blow Date: Tue, 11 Jul 100 20:08:58 GMT X-Mailer: Endymion MailMan Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've got the ball: In the software field, the open source development model means that the public is as much a manufacturer as Sony or RCA. With the public as manufacturer, can anyone say anti-competitve licensing restrictions? To restrict DeCSS through 1201, the copyright holders restrain the competitive market for players--no matter what the size of the wall they've built with the DVDCCA. There's the tying argument. Who'd care to run with it? It seems like good amicae material. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:15:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09002 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:15:02 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08999 for ; Tue, 11 Jul 2000 16:14:58 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <349C58GS>; Tue, 11 Jul 2000 16:18:09 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E2F@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Tue, 11 Jul 2000 16:18:08 -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 drive emulator would function as a DVD device driver. The driver would get the key block, and the .vob file, from a hard drive, or across a network, or whatever. It would be a very difficult task to show that such a device driver is illegal under 1201. -----Original Message----- From: Jim Taylor [mailto:jtfrog@usa.net] Sent: Tuesday, July 11, 2000 2:02 AM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] LOC post-hearing comments are available Paul Fenimore, on Monday, July 10, 2000 2:25 PM, writes: >But this is a media-specific claim. For the sake of argument, let's take >the P's claim that "internet transmission is viable" is correct. But they claim only that Internet transmission of *circumvented* content is viable. >Transmit a disk image electronically. This is playable using a drive >emulator and the disk image. (I'm not saying an appropriate drive >emulator exists). An image-maker does not exist either. All software I'm aware of would not copy the key block, so the image would not play on an emulator. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:26:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09356 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:26:00 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09353 for ; Tue, 11 Jul 2000 16:25:58 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <349C58HJ>; Tue, 11 Jul 2000 16:29:10 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E30@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] [dvd discuss] amicus brief for trial? Date: Tue, 11 Jul 2000 16:29:09 -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 Last time I worked on this problem, here was the situation: The computer code in a Type 1 font is the code that allows the font to be rendered at any given resolution. The computer code is actually executed every time you view a document that requires Type 1 fonts; that means you have to have a license for the font on every device -- every computer, every printer -- that renders the font. Fortunately, Microsoft paid off Adobe, so you don't have to worry about your Windows machine. Ditto for your printer, unless you built your own. However, if you have rendered the font, you get it in bitmap form at some resolution. You can take those bitmaps and resize them without a license. They will not be very good quality, trust me. -----Original Message----- From: Jeremy A Erwin [mailto:jerwin@osf1.gmu.edu] Sent: Tuesday, July 11, 2000 8:35 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? (exactly what are the copyright limitations on Type 1 Postscript fonts? I've heard that copying the computer code violates copyright, but redigitization of the output is not necessarily prohibited by law). From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:43:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09767 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:43:47 -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 QAA09764 for ; Tue, 11 Jul 2000 16:43:46 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA15275 for ; Tue, 11 Jul 2000 16:42:33 -0400 (EDT) Date: Tue, 11 Jul 2000 16:42:33 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The fatal blow In-Reply-To: <200007112008.PAA16618@mail.swdata.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, 11 Jul 100, Chris Moseng wrote: > I've got the ball: > In the software field, the open source development model means that the public > is as much a manufacturer as Sony or RCA. > With the public as manufacturer, can anyone say anti-competitve licensing > restrictions? > To restrict DeCSS through 1201, the copyright holders restrain the competitive > market for players--no matter what the size of the wall they've built with the > DVDCCA. > There's the tying argument. Who'd care to run with it? It seems like good > amicae > material. Well, the first problem we have to deal with is the fact that DeCSS is not a player, and thus to restrain DeCSS is not restraint of competition. I think that there are several aspects to DeCSS: 1. It can be used for fair use-- decrypting segments into a form that can be used for parody, commentary, etc. 2. It can be used to decrypt streams for the testing of non CSS related DVD algoriths (such as mpeg2dec, ac3dec, etc) 3. It can be used as a proof of concept, to make sure that the CSS decryption routines are valid, prior to the completion of a mpeg2 or a ac3 decoder. 4. It is a surrogate for all unlicensed implementaions of the CSS algorithm, including those related to LiVid's oms. Presently, though, I don't think Kaplan is too receptive to antitrust aspects. Witness his recent dismissal of the defendent's request to adjourn trial... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:52:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09969 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:52:34 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09966 for ; Tue, 11 Jul 2000 16:52:33 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6BKpK300281 for ; Tue, 11 Jul 2000 15:51:20 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id PAA03956 for ; Tue, 11 Jul 2000 15:51:17 -0500 (CDT) Date: Tue, 11 Jul 2000 15:51:17 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The fatal blow In-Reply-To: <200007112008.PAA16618@mail.swdata.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, 11 Jul 100, Chris Moseng wrote: > I've got the ball: > > In the software field, the open source development model means that the public > is as much a manufacturer as Sony or RCA. > > With the public as manufacturer, can anyone say anti-competitve licensing > restrictions? > > To restrict DeCSS through 1201, the copyright holders restrain the competitive > market for players--no matter what the size of the wall they've built with the > DVDCCA. > > There's the tying argument. Who'd care to run with it? It seems like good > amicae > material. > I like this idea, but I'm not so sure it would be a could one to present in this case. Two reasons: 1) I don't think the tying argument requires an appeal to open source/free softwaret principles. I think it is already strong enought to give us the authorization model that we want.[1] 2) I think that trying to explain free software to the judge would be difficult. 3) I think that this argument would require lots of free software/community development theory, which would be fairly high level, and has no real basis in law *yet*. Oops, 3 reasons. Here's how I think we should do the amicus brief that I hope we will write. We should focus on authorization, since I think that's the point that is currently missing most. We should discuss alternatives other than first sale authorization (such as the tying stuff) and see why they fail. Finally, we should analyze why this authorization model disembowls the P's case. [1] It is important to note that the claim of tying is not an affirmative defense against the charges. It merely allows us to establish the authority model we want, since the MPAA does not want to risk the loss of copyright on every movie ever CSS encrypted. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:52:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09977 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:52:58 -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 QAA09974 for ; Tue, 11 Jul 2000 16:52:57 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA30592 for ; Tue, 11 Jul 2000 16:51:44 -0400 (EDT) Date: Tue, 11 Jul 2000 16:51:43 -0400 (EDT) From: Jeremy A Erwin To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] [dvd discuss] amicus brief for trial? In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E30@c100.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 Tue, 11 Jul 2000, Leland Ray wrote: > > Last time I worked on this problem, here was the situation: > > The computer code in a Type 1 font is the code that allows the > font to be rendered at any given resolution. The computer code > is actually executed every time you view a document that requires > Type 1 fonts; that means you have to have a license for the font > on every device -- every computer, every printer -- that renders > the font. > > Fortunately, Microsoft paid off Adobe, so you don't have to worry > about your Windows machine. Ditto for your printer, unless you > built your own. > > However, if you have rendered the font, you get it in bitmap form > at some resolution. You can take those bitmaps and resize them > without a license. They will not be very good quality, trust me. > > > -----Original Message----- > From: Jeremy A Erwin [mailto:jerwin@osf1.gmu.edu] > Sent: Tuesday, July 11, 2000 8:35 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? > > (exactly what are the copyright limitations on Type 1 Postscript > fonts? I've heard that copying the computer code violates copyright, but > redigitization of the output is not necessarily prohibited by law). > Actually, I was more interested in the following process: Adobe sells you a type 1 font. You print out the typeface at suitably high resolution, and using a scanner, reinput them into the computer. Then, you recreate the splines (by hand) associated with the font, and repackage it into a Type 1or Trutype font... BTW, the original package I was referring to in my discussion of shovelwhere with unlock codes, was Adobe Type OnCall... Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 16:59:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10253 for dvd-discuss-outgoing; Tue, 11 Jul 2000 16:59:21 -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 QAA10250 for ; Tue, 11 Jul 2000 16:59:19 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id QAA11899 for ; Tue, 11 Jul 2000 16:57:28 -0400 Date: Tue, 11 Jul 2000 16:57:27 -0400 (EDT) From: Joshua Stratton To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] [dvd discuss] amicus brief for trial? In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E30@c100.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 Ah, we're back into my line of work again ;) Computer fonts come in two varieties. Raster (aka bitmaps) and Vector. A raster font consists of a bunch of letters which have been created by setting individual pixels on and off at some fixed resolution. (typically 72 or 96 ppi) Each raster font is also fixed at a particular size. I'm not entirely sure how these are arranged on other platforms, but on the Mac there would frequently be a whole collection of fonts at different sizes, e.g. Helvetica 9, 10, 12, 14, 18, 24. If you attempted to enlarge the Helvetica 12 font by 200% so that it would be 24 points it would look substantially different because it was not intended for this. Resizing raster images, which is technically what a raster font is, usually results in what are called 'jaggies'. The solution was to create a second type of font, and these are Vector fonts. PostScript fonts on the Mac normally consist of a collection of raster fonts for use on-screen as well as a collection of vector fonts for use when printing, or in other situations when appropriate. Rather than consisting of bitmaps, vector fonts are precise drawings expressed mathematically. Thus instead of having a painstakingly drawn picture of an 'A,' there are coordinates and equations describing the curves of the lines connecting them. Naturally, a vector font is not closely tied down to a particular size; if you want to enlarge it by 200% it need only adjust the coordinates and equations appropriately. Due to the differences in the various weights of fonts in a family however, it's more common to have seperate files for, say, Helvetica Bold and Helvetica Italic. It could also be done mathematically, but there are substantial visual differences which must be taken into account by the creator of the typeface that preclude this in most cases. The rasters (which these days are created from the vector files, and are of no account) and the vector files have recently gained some protection in court. This is notable, because the inherently derivative nature of typefaces has kept them from being legally protected in the US. The situation can be quite different elsewhere though. Anyway... if you do want a copy of a font there is still a way to get one legally AFAIK, without having to pay the foundry. Remember, it is the *specific* set of mathematical equations et al that is protected. Not the typeface itself. So if you create a vector file by tracing the shape of the letters after they've been output in some way with the appropriate typographic software it is possible to have a virtually exact copy w/o paying in anything but tools and the time that it took to do. This copy is also protected, but protected to the tracer, and not to the holders of the typeface which was traced. Names, OTOH, are frequently trademarked so you do have to be careful there. This will not necessarily faithfully reproduce the font either. It's hardly uncommon for there to be substantial differences between small and large letters created with the same font, again for visual reasons. It might take quite a lot of work to really duplicate it. But it's no longer possible to merely copy the file. Note also that while type can't be copyrighted, Congress has from time to time granted some sort of special patents IIRC. I doubt that this is currently still a serious issue, but beware. Of course, I'm not a lawyer, but this is what I've heard on the subject anyway. On Tue, 11 Jul 2000, Leland Ray wrote: > > Last time I worked on this problem, here was the situation: > > The computer code in a Type 1 font is the code that allows the > font to be rendered at any given resolution. The computer code > is actually executed every time you view a document that requires > Type 1 fonts; that means you have to have a license for the font > on every device -- every computer, every printer -- that renders > the font. > > Fortunately, Microsoft paid off Adobe, so you don't have to worry > about your Windows machine. Ditto for your printer, unless you > built your own. > > However, if you have rendered the font, you get it in bitmap form > at some resolution. You can take those bitmaps and resize them > without a license. They will not be very good quality, trust me. > > > -----Original Message----- > From: Jeremy A Erwin [mailto:jerwin@osf1.gmu.edu] > Sent: Tuesday, July 11, 2000 8:35 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] [dvd discuss] amicus brief for trial? > > (exactly what are the copyright limitations on Type 1 Postscript > fonts? I've heard that copying the computer code violates copyright, but > redigitization of the output is not necessarily prohibited by law). > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 17:10:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10386 for dvd-discuss-outgoing; Tue, 11 Jul 2000 17:10:14 -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 RAA10383 for ; Tue, 11 Jul 2000 17:10:12 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA20666 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 16:08:57 -0500 Date: Tue, 11 Jul 2000 16:08:57 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Deposition of Ole Craig Message-ID: <20000711160857.A20556@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: ; from olc@cs.umass.edu on Tue, Jul 11, 2000 at 12:43:21PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 11, 2000 at 12:43:21PM -0400, Ole Craig wrote: > > Hokay, if anyone's interested the transcript of my deposition > is available at > > http://www.cs.umass.edu/~olc/pub/craig-depo.txt I'm a bit confused by what happens when he asks you to calculate your transfer speeds as a proportion of the bandwidth available. Unless I've read this wrong, you're talking about a 1.5 GB file transferred over a 10 Mbps ethernet link. During the deposition, you calculate the transfer speed based on a transfer time of 2 hours and 15 minutes. 2:15 = 135 minutes = 8100 seconds 1,500,000,000 bytes / 8100 seconds = 185,185 bytes/second 185,185 bytes/second * 8 = 1,481,481 bits/second. (that comes out to 1,590,728 bits/second if you use G = 2^30) But in your deposition, you go on to say it was 15.5 megabits per second, and he (plaintiff's lawyer) and you go on to agree that your declaration was in error. What happened here? Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 17:16:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10608 for dvd-discuss-outgoing; Tue, 11 Jul 2000 17:16:45 -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 RAA10605 for ; Tue, 11 Jul 2000 17:16:44 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id QAA20688 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 16:15:30 -0500 Date: Tue, 11 Jul 2000 16:15:30 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Deposition of Ole Craig Message-ID: <20000711161530.A20678@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000711160857.A20556@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000711160857.A20556@thud.reric.net>; from eds@reric.net on Tue, Jul 11, 2000 at 04:08:57PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Grrr. Must read more closely. On Tue, Jul 11, 2000 at 04:08:57PM -0500, Eric Seppanen wrote: > > I'm a bit confused by what happens when he asks you to calculate your > transfer speeds as a proportion of the bandwidth available. THE WITNESS: In my hasty calculations 21 answering the earlier mathematical question, I 22 forgot to divide by 1024 once yielding 15, an 23 answer of 15 megabits per second, which was in 24 fact incorrect. I actually got 1.5 megabits per 1 second. Sorry. Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 17:29:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA10790 for dvd-discuss-outgoing; Tue, 11 Jul 2000 17:29:01 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA10787 for ; Tue, 11 Jul 2000 17:28:59 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id OAA07028 for ; Tue, 11 Jul 2000 14:27:44 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma006707; Tue, 11 Jul 00 14:26:41 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id PAA11128; Tue, 11 Jul 2000 15:26:29 -0600 From: "John Zulauf" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 11 Jul 2000 15:29:33 -0600 Message-ID: <000201bfeb7f$1b28dce0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 >>And if that's right, then the copyright holders can use the DMCA to >>protect *any* process which is necessary to gain access to their work >>--- which (as I've argued a couple of times over the past few days) is >>a constitutionally problematic result, and which also conflicts with >>the clear intent of Congress as shown in the legislative record. > > Agreed. We're now back to the legality of DMCA, which I'm not competent to > judge. But my original point was that authorization can't take place solely > at the point of sale. You have me baffled. For DVD's when else can "the authorization of the copyright holder" take place? Remember that unlike software, et. al. the DVD doesn't come with a click or shrink wrap license. It is clearly a **published work** -- first sale gives the authorization under any conditions stated at that sale. If there are no conditions limiting the choice of decryption/decode/player technology imposed at the point of sale -- IANAL -- I don't see that any can be enforced. Let's contrast this with Divx (c.f. Circuit City not MPEG-4). Specific, limited authorization is given at the point of sale. The purchaser much establish an account with the Divx authorization agency and signs a usage agreement limiting and relingquishing specific rights. That specific, limited authorization is verified by the player. Further, specific, limited authorization can be granted by that player (through contacting the licensing service automatically) under the terms of the license agreement -- with further license fees paid (indirectly) to the copyright holder. When the user purchases a DVD, they are limited only by the "private use" terms noticed at the time of sale. The player does not, is not able to verify, authorize, or grant specific usage rights for a particular work (in fact the SW licensee specific disclaim authorization). It does not require a key, a user ID, a license certificate, serial number, proof-of-purchase, nor even one cereal box-top or green stamp. The player will play any disk inserted, for any user, any number of times. While it allows access to the work, it does nothing to verify the authority of the user to view the work. Emulating or imitating such a scheme does not defeat a TPM based on copyright holders authority, as CSS does nothing to establish copyright holders authorization in the first place. CSS assumes a CSS'd disk is authorized a priori. Essentially if the disk is CSS'd and is be inserted in the drive the use is authorized and thus access is granted to the cleartext work. No authority to access has been checked, and no authorization has been presented to the player. The player assumes "possession is authorization." This "rubber stamp" authorization is only pretextual. Again, it is mere pretext as no test of authority is performed. Therefore the **real** authorization must take place earlier -- before the player ever sees the disk. Since the player assumes "possession is authorization" then authorization occurs at the time the user takes possession of the work. This occurs at point of sale. For the user to have authorized possession of the work, they must purchase it (or be a legimate successor to one who did as in the case of a gift). Thus authorization is granted at point of sale. QED. >>What you're saying here is that CSS does not perform any effective >>check as to whether or not you are authorized to view a particular >>DVD. Which is precisely why I have argued that it does *not* meet >>the 1201(a) definition of effective access control, at least on my own >>reading of the statute... > >Why is the burden on CSS to determine if the disc is stolen or not? The reason people keep bringing up the "stolen disk" issue is that with a non-pretextual authorization system -- a stolen disk is of little value (not so with DVD). For a PPV, dongle, smart card, or password protected system, such Divx, use of a stolen disk would be prevented, require some additional theft (the legimate owner's Divx player, smart card, dongle, or password list) or cost the thief (or successor) possesor to utilize the stolen media. In the case of Divx this would cause usage charges to accrue or reduce the number of available free plays (reduction of prepaid (or prestolen) assets like "free plays" is a cost in the accounting sense)). In other words a non-pretextually TPM/authorization system renders theft of the physical work of little value**. These are the class of systems 1201 sensibly can be thought to protect. Protection by 1201 of a mere pretext -- an apriori or "rubber stamp" authorization by a player seems nonsensical at best. For these schemes, traditional copyrights well apply and provide substantial legal means for protecting against pirated works. ** Actually this might be a good "litmus test" for "effective" TPM's. Does stolen (or pirated) media have significant value without some additional theft (password, dongle, smart card, etc.) If stolen media has identical value to legitimately obtained media, absent some additional theft or fraud, the TPM cannot be considered "effective." Let's test this on the examples above. Stolen (or even borrowed) Divx media, far less useful -- requires "additional authorization" at additional cost to be played -- unless further theft (the authorized Divx player) or fraud (cracking a legitimate users account) occurs. Stolen DVD, identically useful to a legitimately purchased work -- requiring no additional theft as any DVD player will happily play the disk and there is no user id or password to crack. >CSS is >designed to check if the copy of the work is a legitimate copy. CSS does no such thing and by design cannot. It only tests to see if a disk is a valid DVD Video with legitimate keys. This could be true if: (1) The disk is legitimate (2) The disk is a exact bit-for-bit duplicate of a legimate disk (by means available to commercial pirates) (3) The disk was create with misappropriated keys -- imitating a legimate disk. Keep repeating to yourself -- "encryption isn't copy protection, encryption isnt' copy protection." The cyphertext is perfectly, infinitely copiable by those with the right equipment. In fact it's the same equipment used to produce the DVD's in the first place. DVD-R's have been crippled to prevent home users from even fair-use copies, but that's not stopping the professional pirate in the slightest from producing perfect copies that any DVD player would be happy to play. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 17:56:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11265 for dvd-discuss-outgoing; Tue, 11 Jul 2000 17:56:45 -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 RAA11262 for ; Tue, 11 Jul 2000 17:56:43 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6BLtSu19955 for ; Wed, 12 Jul 2000 00:55:29 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 12 Jul 2000 00:55:28 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] here is an idea for a defense 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, 9 Jul 2000, sam th wrote: >DeCSS isn't illegal (under 1201), since it just decrypts any CSS-encrypted >file (from email to vob). Copy-dvd isn't illegal, since it just copies >whatever is on the dvd to stdout. What you're doing is probably fair use >(an affirmative defense against 1201). So this is legal. Is there any reason to assume that multiple things which are not illegal by themselves aren't illegal when packaged together? I mean, there are computer programs which aren't legal eventhough the individual machine instructions could hardly be. To me it seems that packaging them in a certain way might take away the commercial non-infringing use needed for a 1201 defense... >The real DeCSS program is really just a GUI slapped on this imaginary >script, right? How could that be illegal? Mainly, though not entirely, by virtue of bad policy. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 18:03:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA11443 for dvd-discuss-outgoing; Tue, 11 Jul 2000 18:03:20 -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 SAA11440 for ; Tue, 11 Jul 2000 18:03:19 -0400 Message-ID: <20000711220136.15421.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 11 Jul 2000 15:01:36 PDT Date: Tue, 11 Jul 2000 15:01:36 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Amicus trial brief outline 1 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 guess we ought to start working on an amicus trial brief. I guess we ought to start, like we did before, by creating an outline. I'll kick off the conversation by providing a top level outline. I) DeCSS doesn't meet statutory requirments under 1201(a)(2) A) No "circumvention" - authorization models & first sale B) Fails each of (a)(2)(A,B,C) C) CSS not "access control", but rather "use control" II) DeCSS qualifies for RE exception A) Via 1201(f)(1) by obtaining title key as program element B) Via 1201(f)(2) by enabling interoperability C) Intent of 2600 clearly supports granting 1201(f) D) Denial of RE exception extends copyright protection to ideas III) Anti-competitive aspects of CSS player licensing A) Misuse of Copyright B) Tying C) History of Copyright Abuse by motion picture industry IV) Fair Access and Fair Use A) Statue & Legislative history supports "fair access" fair uses B) Fair Use as Constitutional Requirement => "Fair Access" exists C) Commerce Clause cannot cirumvent fair use D) Copying by DeCSS is "fair access" V) First Amendment A) Judical "balancing" explicitly contradicted by the statue B) DeCSS is protected speech C) "Balancing" not applicable to Commerce Clause-based paracopyright D) 1201(a)(2) would fail "Least Restrictive Means" test E) Access undefined. Void-for-vagueness VI) Plaintiff's case for Harm False A) Lossless copying pure fiction B) Lossy copying purely speculative, not a signifcant harm C) Piracy is already illegal VII) Implications: Holding for Plaintiffs harms Public Good A) Creates new form of IP not allowed under Constitution B) Destroys Fair Use C) Shrinks the public domain & impedes arts and sciences __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 11 21:27:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA14474 for dvd-discuss-outgoing; Tue, 11 Jul 2000 21:27:13 -0400 Received: from dial229.roadrunner.com (dial229.cybermesa.com [209.12.75.229] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA14471 for ; Tue, 11 Jul 2000 21:27:10 -0400 Received: (from paul@localhost) by dial229.roadrunner.com (8.8.7/8.8.7) id TAA01822 for dvd-discuss@eon.law.harvard.edu; Tue, 11 Jul 2000 19:26:42 -0600 Date: Tue, 11 Jul 2000 19:26:40 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline 1 Message-ID: <20000711192639.A1375@localhost> References: <20000711220136.15421.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: <20000711220136.15421.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Jul 11, 2000 at 03:01:36PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 11, 2000 at 03:01:36PM -0700, Bryan Taylor wrote: > I guess we ought to start working on an amicus trial brief. I guess we > ought to start, like we did before, by creating an outline. > > I'll kick off the conversation by providing a top level outline. 0) 1201(a) != 1201(b). A. Court must pick one of either "prophylactic" or "infringement is irrelevant". B. Fair use (non-copyright use?) statutorily protected in (c)(1,4) This requires that (a) and (b) are non-overlapping. C. Structure of statute, (a) is with "authority", (b) is "merely" in the normal course of operation. Requires zero overlap. D. Different def's of "access" lead to different readings of (a), and impacts separation of (a) and (b). (i) access is Commercial access. Congressional report. (ii) access is a verb, approx. descramble. (iii) access is a noun, approx. having the plaintext E. "Process" in (a)(3)(B) can come before or after act of duplication. This strongly argues that 1201(a) is not "prophylactic". Zero overlap. F. All performance of the "process" in (a)(3)(B) must be accompanied by copying into writable memory, no matter whose player is used. Does not require any overlap. > I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > A) No "circumvention" - authorization models & first sale (i) "circumvention" is a legal finding, not a finding of fact. > B) Fails each of (a)(2)(A,B,C) > C) CSS not "access control", but rather "use control" (i) see (0)(D)(iii) above. (ii) "requires" in (A)(3)(B) means a key, not gzip. > II) DeCSS qualifies for RE exception > A) Via 1201(f)(1) by obtaining title key as program element > B) Via 1201(f)(2) by enabling interoperability > C) Intent of 2600 clearly supports granting 1201(f) > D) Denial of RE exception extends copyright protection to ideas > III) Anti-competitive aspects of CSS player licensing > A) Misuse of Copyright > B) Tying > C) History of Copyright Abuse by motion picture industry > IV) Fair Access and Fair Use Use of the word "fair" paired with "access" implies that -in the context of exclusive rights- (i.e. not access == commerce), access==use can be reserved to the copyright owner. I think this conceeds too much. > A) Statue & Legislative history supports "fair access" fair uses > B) Fair Use as Constitutional Requirement => "Fair Access" exists > C) Commerce Clause cannot cirumvent fair use > D) Copying by DeCSS is "fair access" > V) First Amendment > A) Judical "balancing" explicitly contradicted by the statue > B) DeCSS is protected speech > C) "Balancing" not applicable to Commerce Clause-based paracopyright > D) 1201(a)(2) would fail "Least Restrictive Means" test > E) Access undefined. Void-for-vagueness > VI) Plaintiff's case for Harm False > A) Lossless copying pure fiction > B) Lossy copying purely speculative, not a signifcant harm > C) Piracy is already illegal > VII) Implications: Holding for Plaintiffs harms Public Good > A) Creates new form of IP not allowed under Constitution > B) Destroys Fair Use > C) Shrinks the public domain & impedes arts and sciences From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 00:35:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16432 for dvd-discuss-outgoing; Wed, 12 Jul 2000 00:35:45 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA16429 for ; Wed, 12 Jul 2000 00:35:43 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA04098 for ; Tue, 11 Jul 2000 23:34:05 -0500 Message-ID: <396BF3F9.279576E6@mninter.net> Date: Tue, 11 Jul 2000 23:28:41 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The fatal blow 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Allow me to embellish my earlier rushed statement about the illegal tying argument, and how we can make it even in this trial. Jeremy A Erwin wrote: > Well, the first problem we have to deal with is the fact that DeCSS > is not a player, and thus to restrain DeCSS is not restraint of > competition. [...] > Presently, though, I don't think Kaplan is too receptive to antitrust > aspects. Witness his recent dismissal of the defendent's request to > adjourn trial... Fair enough. However, I think it is fair to make the assumptions that DVDs are published works granted copyright protection and that all manufacturers should have the right to manufacture a player for DVDs. sam th says: > 3) I think that this argument would require lots of free > software/community development theory, which would be fairly high > level, and has no real basis in law *yet* Also good points. This argument certainly isn't necessary; our strongest is definitely the one that attacks the authority model. This argument, though is the icing on the cake. It is the BIG win. Certainly the defense team would have to assert it to make it happen, but to even suggest it in case the trial goes to appeals would be beneficial, I think. Why give up an opportunity to legitimize and strengthen open source development? I think a basic outline would go a little like this: I. Any manufacturer must have an equal right to market a player II. The public, through open-source development, is a software manufacturer. III. For the public to bring software to market, programs must be prepared piecemeal. IV. To prohibit one piece of software under 1201, software that could be developed or integrated into 1201-compliant software, precludes the public from developing a competing player. V. The plaintiffs, by bringing the lawsuit (or by specifying authorized players, or insert your hotbutton here), preclude a manufacturer from developing a competing player. I don't think has to be too hot-and-heavy into open source to make it work. Just matter-of-fact. It's just another example of the harm done by censorship, one that just happens to be a little more apropos of copyright and the first amendment. Flesh out a little more of their tying arrangement with the DVDCCA without referring to it directly. Don't let the judge forget that he's being asked to decide a first amendment case by 1201, not pure copyright. Does anyone think a small runthrough of this in our brief would be helpful, or maybe a third party could submit it? ESR? - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWvz9zik9YADgV7kEQLWMQCg3YeMQbHX4jZuLBL6y1AVhWkY+ewAoO7B Cc2eaz0yGJEBY5X0YANWllTW =J+0j -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 00:39:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16527 for dvd-discuss-outgoing; Wed, 12 Jul 2000 00:39:47 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA16524 for ; Wed, 12 Jul 2000 00:39:46 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.cs.com (mail_out_v27.10.) id x.26.7ef5f65 (4572) for ; Wed, 12 Jul 2000 00:37:59 -0400 (EDT) Message-ID: <26.7ef5f65.269d5027@cs.com> Date: Wed, 12 Jul 2000 00:37:59 EDT Subject: Re: [dvd-discuss] Amicus trial brief outline 1 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I like most of what I read... but I have 2 questions: 1. Are you sure that DeCSS is protected speech? Source Code is a protected medium... but the content and circumstances surrounding speech could make it lose protection. So you have to make sure some law (excluding the DMCA, of course) doesn't forbid the divulging of that particular information in any form before you argue the information contained in DeCSS is protected. 2. What unconstitutional form of IP are you referring to? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 01:10:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16748 for dvd-discuss-outgoing; Wed, 12 Jul 2000 01:10:40 -0400 Received: from ts0210.bates.edu (root@ts0206.bates.edu [134.181.72.136]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16745 for ; Wed, 12 Jul 2000 01:10:37 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id BAA03788 for ; Wed, 12 Jul 2000 01:13:43 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Wed, 12 Jul 2000 01:13:42 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The fatal blow In-Reply-To: <396BF3F9.279576E6@mninter.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Tue, 11 Jul 2000, Chris Moseng wrote: > I think a basic outline would go a little like this: > > I. Any manufacturer must have an equal right to market a player > II. The public, through open-source development, is a software > manufacturer. > III. For the public to bring software to market, programs must be > prepared piecemeal. > IV. To prohibit one piece of software under 1201, software that could be > developed or integrated into 1201-compliant software, precludes the > public from developing a competing player. Fortunately, since the suit covers everything that the P's don't like, from LiViD to DOD, these two steps are unneccessary. We merely need to cite LiViD's oms (or we could have a script made of the three or four neccessary cli commands). > V. The plaintiffs, by bringing the lawsuit (or by specifying authorized > players, or insert your hotbutton here), preclude a manufacturer from > developing a competing player. > > I don't think has to be too hot-and-heavy into open source to make it > work. Just matter-of-fact. It's just another example of the harm done by > censorship, one that just happens to be a little more apropos of > copyright and the first amendment. Flesh out a little more of their > tying arrangement with the DVDCCA without referring to it directly. > > Don't let the judge forget that he's being asked to decide a first > amendment case by 1201, not pure copyright. > > Does anyone think a small runthrough of this in our brief would be > helpful, or maybe a third party could submit it? ESR? As I say, our brief is *way* too big already. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5bAyXt+kM0Mq9M/wRAqGrAKDSh8evWoiIjZMLjJ/En6U3Rw+LtQCgwr8A 7ZYEBkygkK7EQwe2/+3RK4c= =B20u -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 01:13:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16909 for dvd-discuss-outgoing; Wed, 12 Jul 2000 01:13:15 -0400 Received: from ts0210.bates.edu (root@ts0206.bates.edu [134.181.72.136]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16906 for ; Wed, 12 Jul 2000 01:13:12 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id BAA03801 for ; Wed, 12 Jul 2000 01:16:19 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Wed, 12 Jul 2000 01:16:17 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline 1 In-Reply-To: <20000711220136.15421.qmail@web514.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Tue, 11 Jul 2000, Bryan Taylor wrote: > I guess we ought to start working on an amicus trial brief. I guess we > ought to start, like we did before, by creating an outline. > > I'll kick off the conversation by providing a top level outline. > Excellent outline, esp with Paul's revisions. But it's *way* too long. 10 page limit, remember? This is why I suggested writing about authority. It's a well-definied topic, covers lots of ground, would not be as excessively long, and is something that we have discussed *extensively*. As for the other topics, I reccomend helping the defense team prepare briefs on them (that is legal, isn't it?). sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5bA0yt+kM0Mq9M/wRAvdEAKDBmWqgP7i9Okn1gWgqk5vr6n/X6QCdFDAz Kw5hfw6T7a0eDt3CdXoLfTY= =zdre -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 09:45:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA19788 for dvd-discuss-outgoing; Wed, 12 Jul 2000 09:45:33 -0400 Received: from hotmail.com (law2-f29.hotmail.com [216.32.181.29]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA19785 for ; Wed, 12 Jul 2000 09:45:31 -0400 Received: (qmail 15255 invoked by uid 0); 12 Jul 2000 13:43:49 -0000 Message-ID: <20000712134349.15254.qmail@hotmail.com> Received: from 208.31.105.2 by www.hotmail.com with HTTP; Wed, 12 Jul 2000 06:43:49 PDT X-Originating-IP: [208.31.105.2] From: "Jace Cooke" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Date: Wed, 12 Jul 2000 09:43:49 EDT 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 First to answer this: >2. What unconstitutional form of IP are you referring to? I think the outline refers to intellectual property that is given the benefits of patents, copyrights and trade secrets, but with none of their respective drawbacks. Secondly i agree with sam in saying that the amicus should be condensed, and his suggestion of an authority focus is also quite a good idea. Lastly, (OT) i was reading a wired article yesterday about MP3 honchos squaring off down here in d.c. At the end they mentioned Orrin Hatch asking questions of the RIAA prez, who was seemingly less than enthused by his line of questioning. >From Wired: Orrin Hatch said that if record companies and music publishers don't reasonably license their music and make it available in various file formats, they would consider legislation to force the companies to license their music to all comers. Hatch asked [Hillary] Rosen if several hypothetical situations, such as making an audiocassette of a CD to give to a spouse, constituted fair use. Refusing to answer, she replied that Hatch was "leading me down the Napster path." I find this VERY interesting because our beloved DMCA was originally introduced by none other than Sen. Hatch. If it can be shown that the senator indeed is pro fair-use/consumer rights (which seems to be the case), then an exstensible argument might be made that Congress in fact did not intend for 1201 to award absolute authoritarian power to MPAA in controlling its digital content. Not really a defense, but a supportive thought... I think this amicus is going to be quite a compelling peice of literature. --- Jace Cooke uhhh no cool sig, website, or expert credentials just a curious (and often confused) 18 year old IP law clerk in d.c. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 11:32:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21394 for dvd-discuss-outgoing; Wed, 12 Jul 2000 11:32:57 -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 LAA21391 for ; Wed, 12 Jul 2000 11:32:56 -0400 Message-ID: <20000712153114.2467.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 12 Jul 2000 08:31:14 PDT Date: Wed, 12 Jul 2000 08:31:14 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline 1 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 --- Consilgere@cs.com wrote: > I like most of what I read... but I have 2 questions: > > 1. Are you sure that DeCSS is protected speech? Source Code is a > protected medium... but the content and circumstances surrounding > speech could make it lose protection. So you have to make sure some > law (excluding the DMCA, of course) doesn't forbid the divulging > of that particular information in any form before you argue > the information contained in DeCSS is protected. The DeCSS source code and cs-auth source code is protected speach under the Junger precedent. Touretzky's declaration makes this more tangible. > 2. What unconstitutional form of IP are you referring to? The kind that the Plaintiffs falsely believe the DMCA creates: one that protects their programming ideas with patent-like fury without requiring the "inventions" to be disclosed as a public record to the patent office and one that extends copyright protection to peripherial articles that are not among the original works of authorship. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 11:46:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21694 for dvd-discuss-outgoing; Wed, 12 Jul 2000 11:46:44 -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 LAA21689 for ; Wed, 12 Jul 2000 11:46:39 -0400 Message-ID: <20000712154455.14697.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 12 Jul 2000 08:44:55 PDT Date: Wed, 12 Jul 2000 08:44:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline 1 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 --- sam th wrote: > Excellent outline, esp with Paul's revisions. But it's *way* too > long. 10 page limit, remember? Actually, the brief we submitted before was 17 or 18 pages. The hard limit is 35 pages. The SDNY rules state that if you go over 10 pages then you have to provide a table of conents. This does not change the fact that it is good to be concise. > This is why I suggested writing about authority. It's a > well-definied topic, covers lots of ground, would not > be as excessively long, and is something that we have discussed > *extensively*. As for the other topics, I reccomend helping the > defense team prepare briefs on them (that is legal, isn't it?). Another possibility is to create more than one brief. I don't know if this is ever done. Just an idea. In some sense, I think Kaplan is a lost cause. (I could be wrong, but I'd be surprised). The real decision will be up to the 2nd Circuit Court of Appeals (even if Kaplan does come to religion). With this point of view, I think there is some case to be made for us producing a comprehensive document that consicely states the flaws in the Plaintiffs case. This way, the appeals court could never say "that arguement wasn't made to the distric court". Of course, this is a group thing, so I'm flexible. What do other people think about the scope of the brief? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 11:53:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA21854 for dvd-discuss-outgoing; Wed, 12 Jul 2000 11:53:34 -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 LAA21851 for ; Wed, 12 Jul 2000 11:53:33 -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:2.21) with ESMTP id LAA15180 for ; Wed, 12 Jul 2000 11:52:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA26655; Wed, 12 Jul 2000 11:52:22 -0400 (EDT) Date: Wed, 12 Jul 2000 11:52:22 -0400 (EDT) Message-Id: <200007121552.LAA26655@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <20000712134349.15254.qmail@hotmail.com> References: <20000712134349.15254.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jace Cooke writes: > I find this VERY interesting because our beloved DMCA was > originally introduced by none other than Sen. Hatch. If it can be > shown that the senator indeed is pro fair-use/consumer rights > (which seems to be the case), then an exstensible argument might be > made that Congress in fact did not intend for 1201 to award > absolute authoritarian power to MPAA in controlling its digital > content. Not really a defense, but a supportive thought... It's pretty clear, to me at least, that they didn't. See http://eon.law.harvard.edu/archive/dvd-discuss/msg01908.html for quotes from key legislators on both sides of the aisle, and the conference committee report, among other things. I agree with Sam, BTW, that we can't cover everything we've discussed, and that authority might well be a good thing for us to cover. There's a problem in doing that, though, which is that the plaintiffs seem to have a very different notion of what "authority" means in the context of 1201(a) than most of us, and they seem to have sold it to the judge. Briefly, the language we're trying to interpret is 1201(a)(3)(B): a technological measure `effectively controls access to a work' if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. Starting from this language, the plaintiffs, in their various depositions, seem to be reasoning as follows: (a) CSS requires the application of a particular process or treatment to gain access to a work. (b) It also requires our authority --- we license it. (c) Any *unlicensed* performance of the CSS process is without our authority, and hence, circumvention. Of course, this reading would give them the power to assert a patent-like monopoly over *any* process which is required to gain access to their work --- but that was pretty much the upshot, at least so far, of my colloquy with Jim Taylor, who knows the plaintiffs better than most of us and may well be the best proxy for them we're likely to get. And of course, on this reading of the law, it just doesn't matter what the DVD boxes say or what the player licenses say --- what matters are the rights to the *process*, which they have in perpetuity under law. So, if we're going to say anything at all about authority, it seems to me that we need to counter this reading, by showing problems with it and proposing an alternative. (I naturally favor my own, which is that 1201(a)(3)(B) means that the *technological measure* must perform some test concerning whether the *viewer* is authorized, and that circumvention under 1201(a) is limited to devices or processes which provide access while defeating the effect of that test --- but there seem to be other views floating around). An outline for at least the authority-related section of a brief along these lines might be: I) Authority and authority models A) Plaintiff's model, as outlined above B) Alternative model C) Constitutional problems with plaintiff's model 1) Unlimited patent-like monopoly grant 2) Grants rights on inventions to authors 3) [??Crippling effects on fair use] D) Plaintiff's model is at odds with intent of Congress E) Alternative model grants plaintiffs protection for numerous measures which would effectively guard their content 1) Circuit City Divx 2) Pay-per-view cable Or something like that. Comments? rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:09:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22137 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:09:53 -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 MAA22134 for ; Wed, 12 Jul 2000 12:09:49 -0400 Message-ID: <20000712160755.11004.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Wed, 12 Jul 2000 09:07:55 PDT Date: Wed, 12 Jul 2000 09:07:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline 1 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 This is a good suggestion. You've blown out the points in a little more detail than I did. This takes the "access" vs "use" control arguement one step further, by pointing out the way that they want to have it both ways. It is important to understand why Congress made both: (b) is broad but "fair use" is a defense. (a) is protects only the "new model" of copyright commerce: first sale at delivery of access key, which P's don't qualify for. Perhaps this is still under the first section, though: I) DeCSS doesn't meet statutory requirments under 1201(a)(2) --- Paul Fenimore wrote: > 0) 1201(a) != 1201(b). > A. Court must pick one of either "prophylactic" or "infringement > is irrelevant". > B. Fair use (non-copyright use?) statutorily protected in (c)(1,4) > This requires that (a) and (b) are non-overlapping. > C. Structure of statute, (a) is with "authority", (b) is "merely" > in the normal course of operation. Requires zero overlap. > D. Different def's of "access" lead to different readings of (a), > and impacts separation of (a) and (b). > (i) access is Commercial access. Congressional report. > (ii) access is a verb, approx. descramble. > (iii) access is a noun, approx. having the plaintext > E. "Process" in (a)(3)(B) can come before or after act of > duplication. This strongly argues that 1201(a) is > not "prophylactic". Zero overlap. > F. All performance of the "process" in (a)(3)(B) must be > accompanied by copying into writable memory, no matter whose > player is used. Does not require any overlap. > > > I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > > C) CSS not "access control", but rather "use control" > (i) see (0)(D)(iii) above. > (ii) "requires" in (A)(3)(B) means a key, not gzip. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:35:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22316 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:35:46 -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 MAA22313 for ; Wed, 12 Jul 2000 12:35:45 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C2DQ>; Wed, 12 Jul 2000 09:34:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 09:34:35 -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 Shorter: CSS is not protected by 1201 because in the NORMAL COURSE OF OPERATION it is ALWAYS removed (translated, processed). By contrast, the whatever measure was used in the Divx system WAS protected by 1201 because the normal course of operation may have resulted in it's processing (if access was authorized) or may have resulted in it's not being processed (if access was not authorized). Without that vital step to determine whether access should be granted or not, it can not be considered to be an access control mechanism. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: John Zulauf [mailto:john.zulauf@ia.nsc.com] > Sent: Tuesday, July 11, 2000 2:30 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > >>And if that's right, then the copyright holders can use the DMCA to > >>protect *any* process which is necessary to gain access to > their work > >>--- which (as I've argued a couple of times over the past > few days) is > >>a constitutionally problematic result, and which also conflicts with > >>the clear intent of Congress as shown in the legislative record. > > > > Agreed. We're now back to the legality of DMCA, which I'm > not competent to > > judge. But my original point was that authorization can't take place > solely > > at the point of sale. > > You have me baffled. For DVD's when else can "the > authorization of the > copyright holder" take place? Remember that unlike software, > et. al. the > DVD doesn't come with a click or shrink wrap license. It is clearly a > **published work** -- first sale gives the authorization under any > conditions stated at that sale. If there are no conditions > limiting the > choice of decryption/decode/player technology imposed at the point of > sale -- IANAL -- I don't see that any can be enforced. > > Let's contrast this with Divx (c.f. Circuit City not MPEG-4). > Specific, > limited authorization is given at the point of sale. The > purchaser much > establish an account with the Divx authorization agency and > signs a usage > agreement limiting and relingquishing specific rights. That specific, > limited authorization is verified by the player. Further, > specific, limited > authorization can be granted by that player (through contacting the > licensing service automatically) under the terms of the > license agreement -- > with further license fees paid (indirectly) to the copyright holder. > > When the user purchases a DVD, they are limited only by the > "private use" > terms noticed at the time of sale. The player does not, is > not able to > verify, authorize, or grant specific usage rights for a > particular work (in > fact the SW licensee specific disclaim authorization). It > does not require > a key, a user ID, a license certificate, serial number, > proof-of-purchase, > nor even one cereal box-top or green stamp. The player will > play any disk > inserted, for any user, any number of times. While it allows > access to the > work, it does nothing to verify the authority of the user to > view the work. > Emulating or imitating such a scheme does not defeat a TPM based on > copyright holders authority, as CSS does nothing to establish > copyright > holders authorization in the first place. > > CSS assumes a CSS'd disk is authorized a priori. Essentially > if the disk is > CSS'd and is be inserted in the drive the use is authorized > and thus access > is granted to the cleartext work. No authority to access has > been checked, > and no authorization has been presented to the player. The > player assumes > "possession is authorization." This "rubber stamp" > authorization is only > pretextual. Again, it is mere pretext as no test of > authority is performed. > > Therefore the **real** authorization must take place earlier > -- before the > player ever sees the disk. Since the player assumes "possession is > authorization" then authorization occurs at the time the user takes > possession of the work. This occurs at point of sale. For the > user to have > authorized possession of the work, they must purchase it (or > be a legimate > successor to one who did as in the case of a gift). Thus > authorization is > granted at point of sale. > > QED. > > >>What you're saying here is that CSS does not perform any effective > >>check as to whether or not you are authorized to view a particular > >>DVD. Which is precisely why I have argued that it does *not* meet > >>the 1201(a) definition of effective access control, at > least on my own > >>reading of the statute... > > > >Why is the burden on CSS to determine if the disc is stolen or not? > > > The reason people keep bringing up the "stolen disk" issue is > that with a > non-pretextual authorization system -- a stolen disk is of > little value (not > so with DVD). For a PPV, dongle, smart card, or password > protected system, > such Divx, use of a stolen disk would be prevented, require > some additional > theft (the legimate owner's Divx player, smart card, dongle, > or password > list) or cost the thief (or successor) possesor to utilize > the stolen media. > In the case of Divx this would cause usage charges to accrue > or reduce the > number of available free plays (reduction of prepaid (or > prestolen) assets > like "free plays" is a cost in the accounting sense)). In > other words a > non-pretextually TPM/authorization system renders theft of > the physical work > of little value**. These are the class of systems 1201 > sensibly can be > thought to protect. Protection by 1201 of a mere pretext -- > an apriori or > "rubber stamp" authorization by a player seems nonsensical at > best. For > these schemes, traditional copyrights well apply and provide > substantial > legal means for protecting against pirated works. > > ** Actually this might be a good "litmus test" for > "effective" TPM's. Does > stolen (or pirated) media have significant value without some > additional > theft (password, dongle, smart card, etc.) If stolen media > has identical > value to legitimately obtained media, absent some additional > theft or fraud, > the TPM cannot be considered "effective." > > Let's test this on the examples above. Stolen (or even borrowed) Divx > media, far less useful -- requires "additional authorization" > at additional > cost to be played -- unless further theft (the authorized > Divx player) or > fraud (cracking a legitimate users account) occurs. Stolen > DVD, identically > useful to a legitimately purchased work -- requiring no > additional theft as > any DVD player will happily play the disk and there is no user id or > password to crack. > > > >CSS is > >designed to check if the copy of the work is a legitimate copy. > > CSS does no such thing and by design cannot. It only tests > to see if a disk > is a valid DVD Video with legitimate keys. This could be true if: > > (1) The disk is legitimate > (2) The disk is a exact bit-for-bit duplicate of a legimate > disk (by means > available to commercial pirates) > (3) The disk was create with misappropriated keys -- > imitating a legimate > disk. > > Keep repeating to yourself -- "encryption isn't copy > protection, encryption > isnt' copy protection." The cyphertext is perfectly, > infinitely copiable by > those with the right equipment. In fact it's the same > equipment used to > produce the DVD's in the first place. DVD-R's have been > crippled to prevent > home users from even fair-use copies, but that's not stopping the > professional pirate in the slightest from producing perfect > copies that any > DVD player would be happy to play. > > John Zulauf > private netizen > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:39:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22433 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:39:19 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA22430 for ; Wed, 12 Jul 2000 12:39:17 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6CGc6A12704 for ; Wed, 12 Jul 2000 11:38:06 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id LAA05448 for ; Wed, 12 Jul 2000 11:38:04 -0500 (CDT) Date: Wed, 12 Jul 2000 11:38:04 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <200007121552.LAA26655@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, 12 Jul 2000, Robert S. Thau wrote: > Starting from this language, the plaintiffs, in their various > depositions, seem to be reasoning as follows: > > (a) CSS requires the application of a particular process or > treatment to gain access to a work. > (b) It also requires our authority --- we license it. Unfortunately for them, this is simply a lie. The P's don't liscence anything at all. They have agreed to provide works on DVD, in their belief that the DVDCCA will give them the control they want. The only group doing licensing is the DVDCCA, which is *not* a party. They also disclaim any association with authorization in their liccense agreement, and something tells me they don't want to be sued for fraud. > (c) Any *unlicensed* performance of the CSS process is without > our authority, and hence, circumvention. > > Of course, this reading would give them the power to assert a > patent-like monopoly over *any* process which is required to gain > access to their work --- but that was pretty much the upshot, at least > so far, of my colloquy with Jim Taylor, who knows the plaintiffs > better than most of us and may well be the best proxy for them we're > likely to get. > > And of course, on this reading of the law, it just doesn't matter what > the DVD boxes say or what the player licenses say --- what matters are > the rights to the *process*, which they have in perpetuity under law. > > So, if we're going to say anything at all about authority, it seems to > me that we need to counter this reading, by showing problems with it > and proposing an alternative. (I naturally favor my own, which is > that 1201(a)(3)(B) means that the *technological measure* must perform > some test concerning whether the *viewer* is authorized, and that > circumvention under 1201(a) is limited to devices or processes which > provide access while defeating the effect of that test --- but there > seem to be other views floating around). > > An outline for at least the authority-related section of a brief > along these lines might be: > > I) Authority and authority models > A) Plaintiff's model, as outlined above > B) Alternative model > C) Constitutional problems with plaintiff's model > 1) Unlimited patent-like monopoly grant > 2) Grants rights on inventions to authors > 3) [??Crippling effects on fair use] > D) Plaintiff's model is at odds with intent of Congress > E) Alternative model grants plaintiffs protection for numerous > measures which would effectively guard their content > 1) Circuit City Divx > 2) Pay-per-view cable > > Or something like that. Comments? I would want to talk about potential authority models, several of which I discussed in my old message about tying [1]. We outline the possibilities, say what the plaintffs and, and show the bad consequences of it, in addition to its contradiction of published license agreements and its illegality under Sherman, as recently interpreted. I think we could go a long way with that. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:46:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22542 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:46:56 -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 MAA22539 for ; Wed, 12 Jul 2000 12:46:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C21K>; Wed, 12 Jul 2000 09:45:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CCF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Why I love Justice Stevens Date: Wed, 12 Jul 2000 09:45:47 -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: Jeff Waller [mailto:jeff-w@mindspring.com] > sam th wrote: > > > > > > > (3) Does the tying arrangement force purchases that would > not otherwise be > > made? > > Yes. Some of us might want to get our DVD players from > people other than > > those authorized by the DVDCCA. > > One thing that bothers me is what are the other players > *avaliable right now* > or indeed avaliable back in October that consumers are being denied > access? Perhaps none. What DVD-CCA and the MPAA have in effect > eliminated the competition before the fact. Let's assume that somebody wanted to make another player. They have two choices: 1) License CSS 2) Reverse-engineer CSS If option 2 is blocked by 1201, then option 1 becomes the only thing left. 1201 in effect is providing patent protections for something that is being held as a trade secret, merely because it is being -claimed- to be an access protection measure. If they >had< patented CSS then we'd be SOL ... but since it's only a trade secret it is fair game for attempts at independant re-invention. Especially since it is demonstrably -not- an access control measure (look at the Divx paradigm for actual access control measures in use). -- -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 Jul 12 12:51:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22603 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:51:41 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA22600 for ; Wed, 12 Jul 2000 12:51:37 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA25787 for ; Wed, 12 Jul 2000 11:50:08 -0500 Message-ID: <396CA032.3B6853BD@mninter.net> Date: Wed, 12 Jul 2000 11:43:30 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 > I) Authority and authority models > A) Plaintiff's model, as outlined above I will restate my position that the plaintiff's authority model is unknown. You have a theory, I have a theory, they're a little different--and that's something that should be brought to light. What the plaintiffs actually use to determine authority is unknown to us, the defendant, and the world. We should not guess at one, because they might simply say we're mistaken and describe it another way. So I assert we should aim for: A) Plaintiff's Model - what is it? i) It is unknown to the court a) Circumvention is not present when authority is unknown b) The lawsuit is indefensable when authority is unknown c) 'It is disauthorized because we do not authorize it' is tautological--the basis for disauthorization must be clear, lest it be unknowable a priori. ii) It is unknown to DVD owners a) DVD owners cannot reasonably be held to unknown/ unknowable authorization schemes iii) Which definition of DeCSS is it this week? a) That 'DeCSS' has changed meanings strengthens i & ii b) DeCSS is not well defined--will we be back in court next week? c) Their definition must be broad enough to disauthorize all "disauthorized players" but narrow enough to allow all "authorized players" iv) 1201(a) in ill-defined cases yield absurd outcomes a) Arbitrary claims to authority after sale b) False representation of product in marketplace c) Not possible to act in accordance with unasserted, unknown authority To assert all the theoretical authority models only adds to length without adding to understanding. Either they put up, or they shut up. Authority must be well defined, not tautological. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOWygMDik9YADgV7kEQJs9QCbB2tyZOx7UAtnPwfctlB4rE0HEc8AmwZi O6H6HUhdur8NlpxeSQpKbRor =0ihP -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:53:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22695 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:53:15 -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 MAA22692 for ; Wed, 12 Jul 2000 12:53:14 -0400 Received: from jy01 (user-2inij5u.dialup.mindspring.com [165.121.76.190]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id MAA17993 for ; Wed, 12 Jul 2000 12:52:02 -0400 (EDT) Message-Id: X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 12 Jul 2000 12:48:24 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Kaplan Consolidates Motions In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CCE@mail2.onetouch.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 http://www.nysd.uscourts.gov/courtweb/pdf/00-06978.PDF UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x UNIVERSAL CITY STUDIOS, INC., et al., Plaintiffs, -against- 00 Civ. 0277 (LAK) SHAWN C. REIMERDES, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x ORDER LEWIS A. KAPLAN, District Judge. The Court has reviewed the papers on plaintiffs’ motion to expand the preliminary injunction to cover linking and defendants’ cross-motion to vacate the preliminary injunction. The latter obviously raises issues of fact that must be explored by an evidentiary proceeding. The resolution of the former would benefit from such a proceeding. Accordingly, both motions are consolidated with the trial on the merits. SO ORDERED. Dated: July 12, 2000 _______________________________________ Lewis A. Kaplan United States District Judge From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:56:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22795 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:56:42 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA22792 for ; Wed, 12 Jul 2000 12:56:41 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA26388 for ; Wed, 12 Jul 2000 11:55:09 -0500 Message-ID: <396CA158.9ECBA38E@mninter.net> Date: Wed, 12 Jul 2000 11:48:24 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Consolidates Motions 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 Who didn't see that coming? > Accordingly, both motions are consolidated > with the trial on the merits. > > SO ORDERED. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 12:56:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22803 for dvd-discuss-outgoing; Wed, 12 Jul 2000 12:56:57 -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 MAA22800 for ; Wed, 12 Jul 2000 12:56:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C2FB>; Wed, 12 Jul 2000 09:55:44 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CD0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline 1 Date: Wed, 12 Jul 2000 09:55:42 -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, July 12, 2000 8:45 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Amicus trial brief outline 1 > > > > --- sam th wrote: > > Excellent outline, esp with Paul's revisions. But it's *way* too > > long. 10 page limit, remember? > > Actually, the brief we submitted before was 17 or 18 pages. The hard > limit is 35 pages. The SDNY rules state that if you go over 10 pages > then you have to provide a table of conents. > > This does not change the fact that it is good to be concise. > > > This is why I suggested writing about authority. It's a > > well-definied topic, covers lots of ground, would not > > be as excessively long, and is something that we have discussed > > *extensively*. As for the other topics, I reccomend helping the > > defense team prepare briefs on them (that is legal, isn't it?). > > Another possibility is to create more than one brief. I don't know if > this is ever done. Just an idea. If done this way, each brief could be narrowly focused on one subject or argument. I kind of like this. Otoh, if we go overboard and hand in a dozen 3-5 page briefs, it could become annoying. -- -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 Jul 12 13:03:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22917 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:03:54 -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 NAA22914 for ; Wed, 12 Jul 2000 13:03:52 -0400 Message-ID: <20000712170211.17695.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 12 Jul 2000 10:02:11 PDT Date: Wed, 12 Jul 2000 10:02:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS 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 It was down at the bottom, I almost missed this -- --- "Robert S. Thau" wrote: > An outline for at least the authority-related section of a brief > along these lines might be: > > I) Authority and authority models > A) Plaintiff's model, as outlined above > B) Alternative model > C) Constitutional problems with plaintiff's model > 1) Unlimited patent-like monopoly grant > 2) Grants rights on inventions to authors > 3) [??Crippling effects on fair use] > D) Plaintiff's model is at odds with intent of Congress > E) Alternative model grants plaintiffs protection for numerous > measures which would effectively guard their content > 1) Circuit City Divx > 2) Pay-per-view cable > > Or something like that. Comments? I'd probably add something after D like "Factual problems with Plaintiffs model" as well. Here we can add the Xing licence, the DVD licence, the consumer reaonable expectations issue, and the ex-post-facto claim line. It's a nice 1-2-3 combo: it's Constitutionally wrong, it's statutorily wrong, it's factually wrong. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 13:05:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22998 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:05:10 -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 NAA22995 for ; Wed, 12 Jul 2000 13:05:08 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C2F7>; Wed, 12 Jul 2000 10:04:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CD1@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline 1 Date: Wed, 12 Jul 2000 10:04:00 -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: Tuesday, July 11, 2000 3:02 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Amicus trial brief outline 1 > > > I guess we ought to start working on an amicus trial brief. I guess we > ought to start, like we did before, by creating an outline. > > I'll kick off the conversation by providing a top level outline. > > I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > A) No "circumvention" - authorization models & first sale > B) Fails each of (a)(2)(A,B,C) > C) CSS not "access control", but rather "use control" In addition to elaborating "access control" vs. "use control" it might be desirable to compare the purported "access control" characteristics of CSS against an -actual- access control mechanism, in particular the Divx mechanism (and it's associated authority model). > II) DeCSS qualifies for RE exception > A) Via 1201(f)(1) by obtaining title key as program element > B) Via 1201(f)(2) by enabling interoperability > C) Intent of 2600 clearly supports granting 1201(f) > D) Denial of RE exception extends copyright protection to ideas > III) Anti-competitive aspects of CSS player licensing > A) Misuse of Copyright > B) Tying > C) History of Copyright Abuse by motion picture industry > IV) Fair Access and Fair Use > A) Statue & Legislative history supports "fair access" fair uses > B) Fair Use as Constitutional Requirement => "Fair Access" exists > C) Commerce Clause cannot cirumvent fair use > D) Copying by DeCSS is "fair access" > V) First Amendment > A) Judical "balancing" explicitly contradicted by the statue > B) DeCSS is protected speech > C) "Balancing" not applicable to Commerce Clause-based > paracopyright > D) 1201(a)(2) would fail "Least Restrictive Means" test > E) Access undefined. Void-for-vagueness > VI) Plaintiff's case for Harm False > A) Lossless copying pure fiction > B) Lossy copying purely speculative, not a signifcant harm > C) Piracy is already illegal > VII) Implications: Holding for Plaintiffs harms Public Good > A) Creates new form of IP not allowed under Constitution > B) Destroys Fair Use > C) Shrinks the public domain & impedes arts and sciences > I think we've got way too many lines of argument here to develop in one brief. I'd suggest picking 2-4 arguments and focussing on them ... or consider submitting more than one brief as someone else suggested. My candidates for the most fruitful lines to pursue (note that some of the other arguments, such as tying, may become sub-sections here): Authority classic "first sale" authority model unknown/indeterminate nature of P's authority model implications of various attempts to determine P's authority model illegal tying alternate sources of authority (e.g. fair use) not access control contrast w/ Divx elaborate what/who is actually being controled (manufacturers) no demonstrable harm -- -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 Jul 12 13:14:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23397 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:14:28 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23394 for ; Wed, 12 Jul 2000 13:14:27 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA28739 for ; Wed, 12 Jul 2000 12:12:50 -0500 Message-ID: <396CA579.A99D8CE6@mninter.net> Date: Wed, 12 Jul 2000 12:06:01 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline 1 References: <5A8391CA2D9ED311AFAA080009D982B10B1CD0@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard M. Hartman said: > If done this way, each brief could be narrowly focused on one > subject or argument. I kind of like this. Otoh, if we go overboard > and hand in a dozen 3-5 page briefs, it could become annoying. I'm on the side of one brief that handles three or four subjects. What is the difference between a 30-pager and 10 3-pagers? Besides 9 extra cover pages? I'd like to see 10-12 pages, it's less daunting than either alternative. The defense team will certainly grab anything that we miss, and hopefully will cover everything. I see us as attempting to spackle the nail holes, not drywall the mansion. Chris, no lawyer From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 13:17:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23513 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:17:56 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23510 for ; Wed, 12 Jul 2000 13:17:50 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id JAA29746 for dvd-discuss@eon.law.harvard.edu; Wed, 12 Jul 2000 09:30:39 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Consolidates Motions Date: Wed, 12 Jul 2000 09:30:22 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <396CA158.9ECBA38E@mninter.net> In-Reply-To: <396CA158.9ECBA38E@mninter.net> MIME-Version: 1.0 Message-Id: <0007120930381S.05357@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Doesn't this just mean "we'll figure this out at the trial"? --Russell On Wed, 12 Jul 2000, you wrote: > Who didn't see that coming? > > > Accordingly, both motions are consolidated > > with the trial on the merits. > > > > SO ORDERED. > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 13:25:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23597 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:25:32 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23594 for ; Wed, 12 Jul 2000 13:25:30 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA30146 for ; Wed, 12 Jul 2000 12:24:02 -0500 Message-ID: <396CA811.48025409@mninter.net> Date: Wed, 12 Jul 2000 12:17:05 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan Consolidates Motions References: <396CA158.9ECBA38E@mninter.net> <0007120930381S.05357@www.rjmconsulting.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 Jim Miller wrote: > > Doesn't this just mean "we'll figure this out at the trial"? This has been the arc of the proceedings all along. Accelerated trial date because the PI is questionable in light of the first amendment. Accelerated trial date because of "immenent harm." In other words, yes. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 13:42:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23715 for dvd-discuss-outgoing; Wed, 12 Jul 2000 13:42:01 -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 NAA23712 for ; Wed, 12 Jul 2000 13:41:59 -0400 Message-ID: <20000712174018.8040.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 12 Jul 2000 10:40:18 PDT Date: Wed, 12 Jul 2000 10:40:18 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Focus the scope of: Amicus trial brief outline 1 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's some ideas that might tighten the brief. The original is below. Paul submitted some points on 1201(a) vs (b) and RST outlined the authority models stuff in more detail. Here's a proposal for tightenting this down. First, we mostly did the RE stuff in the first brief, so we probably shouldn't do this again in full glory. A few paragraphs to recap the highlights is enough. This could demote to a bullet under (I). The "CSS is anticompetitive" stuff in (III) is really just stuff that goes under the authority models arguement as well. (IV) and (V) are really the same: Statutory and Constitutional limits on the scope of access control. They can be combined. This judge seems very unlikely to get a Constitutional clue, so maybe this is a waste of time, but on the other hand this part goes to doing due diligence on our parts to fight the good fight. Similarly (VI) and (VII) are really both "Implications" of deciding this case one way or the other. This part could be dropped, or it could be blended in to the rest, or it could be kept and consolidated. --- Bryan Taylor wrote: > I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > A) No "circumvention" - authorization models & first sale > B) Fails each of (a)(2)(A,B,C) > C) CSS not "access control", but rather "use control" > II) DeCSS qualifies for RE exception > A) Via 1201(f)(1) by obtaining title key as program element > B) Via 1201(f)(2) by enabling interoperability > C) Intent of 2600 clearly supports granting 1201(f) > D) Denial of RE exception extends copyright protection to ideas > III) Anti-competitive aspects of CSS player licensing > A) Misuse of Copyright > B) Tying > C) History of Copyright Abuse by motion picture industry > IV) Fair Access and Fair Use > A) Statue & Legislative history supports "fair access" fair uses > B) Fair Use as Constitutional Requirement => "Fair Access" exists > C) Commerce Clause cannot cirumvent fair use > D) Copying by DeCSS is "fair access" > V) First Amendment > A) Judical "balancing" explicitly contradicted by the statue > B) DeCSS is protected speech > C) "Balancing" not applicable to Commerce Clause-based > paracopyright > D) 1201(a)(2) would fail "Least Restrictive Means" test > E) Access undefined. Void-for-vagueness > VI) Plaintiff's case for Harm False > A) Lossless copying pure fiction > B) Lossy copying purely speculative, not a signifcant harm > C) Piracy is already illegal > VII) Implications: Holding for Plaintiffs harms Public Good > A) Creates new form of IP not allowed under Constitution > B) Destroys Fair Use > C) Shrinks the public domain & impedes arts and sciences __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:00:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23950 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:00:16 -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 OAA23947 for ; Wed, 12 Jul 2000 14:00:16 -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:2.21) with ESMTP id NAA02946 for ; Wed, 12 Jul 2000 13:59:05 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA24892; Wed, 12 Jul 2000 13:59:04 -0400 (EDT) Date: Wed, 12 Jul 2000 13:59:04 -0400 (EDT) Message-Id: <200007121759.NAA24892@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Why I love Justice Stevens In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CCF@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CCF@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Let's assume that somebody wanted to make another player. They > have two choices: > 1) License CSS > 2) Reverse-engineer CSS > > If option 2 is blocked by 1201, then option 1 becomes the only > thing left. Of course, if option 2 is blocked by 1201, then I'm not entirely sure I see the point in *having* reverse-engineering safe harbors in the law, since you'd need a license to interoperate anyway. Is there a scenario in which they'd still prove useful? If not, then we have another argument that the P's reading of 1201 is out of line with the intent of Congress, if not just incoherent. Hmmm... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:04:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24272 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:04:27 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA24269 for ; Wed, 12 Jul 2000 14:04:24 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA14642 for ; Wed, 12 Jul 2000 11:03:08 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma014311; Wed, 12 Jul 00 11:02:32 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA04889; Wed, 12 Jul 2000 12:02:32 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Amicus trial brief outline 1 Date: Wed, 12 Jul 2000 12:05:38 -0600 Message-ID: <000101bfec2b$c897be80$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 >I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > A) No "circumvention" - authorization models & first sale > B) Fails each of (a)(2)(A,B,C) > C) CSS not "access control", but rather "use control" For I A may I suggest we propose the following litmus test for 1201(a)(2) applicability: For a TPM to qualify as one that "effectively controls access", stolen or pirated work must be useless, or not cost-free to access without some additional act of fraud or theft. The authorization means must be external to the work, and the player must obtain from these means specific authority for access for a given user to a given work. The authorization means must be more than pretextual. "Rubber stamp" authority testing -- e.g. "possession is authorization" -- where authority is not specifically, tested, verified, or granted, cannot be considered effective regardless of the quality or complexity of the underlying TPM. Examples of "effective means" would be those requiring dongles, smart cards, central authorization and/or billing (c.f. Divx, cable PPV), user authentication (id, usage key), or password. In each of these cases stolen or pirated works are of little value without also illegally obtainning (by fraud or theft) the authorization means separate from the work. Bypassing (let's not use circumvent as that is a legal conclusion not a fact) a TPM's authorization requirements for these works may be illegal circumvention (barring other defenses -- fair use, RE, etc). TPM's which do not require additional information cannot be considered "effective." While this test disqualifies CSS as a 1201 "effective" TPM, note that it neither grants a free hand. Cable-boxes, Divx, "license after sale" works (e.g. the Adobe Postscript font disk), and many other TPM's stand protected under 1201. The test distinguishes clearly between publication and license. Published works, such as DVD disks require no additional authorization past first sale as a pratical matter. In other words, once a user has purchased a disk, he or she is never again challenged for their authority to play the work. For these works, stolen or pirated media is equally valuable as the original. Licensed works with 1201 "effective" TPM's do require additional authorization at install or usage time. As such stolen or pirated media is of little value without an additional theft, fraud, or PPV-rights purchase to obtain this additional authorization information. For published works the well understood copyright principles of "first sale" and "fair use" clearly apply. For licensed work, additional restrictions (subject to constitutional or statutory restraint, e.g. a license disallowing women or minorities from access clearly (IANAL) would face legal challenge) apply in addition to the copyright protections, with any 1201 "effective" TPM also protected (again subject to contraint) by 1201. This litmus test passes the "reasonable man" and "post facto" tests. If a standard player for the work implements "possession is authorization", if I don't sign or click a license, if I am not required to seek additional permission (through technical or other means) to view a purchased work, a "reasonable man" will view the work a published, whatever private TPM might be occuring within a given player. On the contrary, in the presence of a signed or clicked license, or the necessity for additional, direct permission from or payment to the copyright holder (or assignee) in order to view (or repeatedly view) a work a "reasonable man" will see the work as licensed -- not published. The "post facto" test is related. A point-of-sale "possession is authorization" model such as used by DVD can allow no additional "post facto" conditions on the purchaser of the work. For 1201 "effective" means, license agreements spell out directly (and are agreed to) what rights the licensor and licensee have in terms of the modification of the license. Let's look further at the mechanics of CSS in light of the above litmus test A licensed, authorized DVD player assumes a CSS'd disk is authorized a priori. This implies that stolen or pirated copies of the cyphertext of the work are equally valuable an orginal. Essentially if the disk is CSS'd and is be inserted in the drive the use is authorized and thus access is granted to the cleartext work. No authority to access has been checked, and no authorization has been presented to the player. The player assumes "possession is authorization." This "rubber stamp" authorization is only pretextual. It is mere pretext as no test of authority is performed. A licensed, authorized DVD player does not, is not able to verify, authorize, or grant specific usage rights for a particular work to a specific user (in fact the SW license specifically disclaims authorization). A DVD player only tests to see if a disk is a valid DVD Video with legitimate keys. This could be true if: (1) The disk is legitimate (2) The disk is a exact bit-for-bit duplicate of a legimate disk (by means available to commercial pirates) (3) The disk was create with misappropriated keys (obtained by fraud or theft from a DVD mastering facility) -- imitating a legimate disk. A licensed, authorized DVD player does not require a key, a user ID, a license certificate, serial number, proof-of-purchase, nor even one cereal box-top or green stamp. The player will play any disk inserted, for any user, any number of times. While it allows access to the cleartext work, it does nothing to verify the authority of the user to access the cleartext work. Implementing, emulating, or imitating such a scheme does not defeat a TPM based on copyright holder's authority, as the scheme does nothing to establish copyright holders authorization in the first place. ** Note: I've left off the whole issue of region coding. It could be written in, but would make the whole thing more wordy. Since the P's are not challenge DeCSS regarding the region codes. They are in fact are on record the region coding has nothing to do with CSS. Thus we can ignore region coding or put it under a blanket disclaimer. This is odd, as if they lose this case, they have also given up region coding as they have excluded it from consideration as a TPM. All their eggs are in the CSS basket -- omelet anybody? Schumann May 15, 2000 page 85 5-7 5 A. In my professional opinion, DeCSS is 6 irrelevant to evading the region coding, in your 7 terminology. Also 86 starting at 13 - 13 Q. I want to know all the different 14 things that are on a DVD that protect, access, or 15 protect playing or protect copying, and I use 16 copying and accessing together. You have to get 17 access to copy. 18 A. There are, to my knowledge, two 19 mechanisms. There is a mechanism called region 20 control or region codes, which is part of the DVD 21 specification, and there is the CSS system itself. 22 Q. Have you tried to use DeCSS to see 23 if it has any effect on region coding? 24 A. I have absolutely no need to do 25 that. INTERIM COURT REPORTING 87 1 Schumann 2 Q. Why not? 3 A. Because I know for a fact that it 4 has no impact on region coding. 5 Q. How do you know that? 6 A. Because I have in the past had 7 intimate and detailed knowledge of how region 8 coding is implemented in DVDs and that is 9 completely embodied within the DVD specification 10 and, therefore, CSS or DeCSS would have no impact 11 on that. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:28:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24571 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:28:29 -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 OAA24568 for ; Wed, 12 Jul 2000 14:28:26 -0400 Received: from travel-net.com (trj74.travel-net.com [207.176.160.74]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id NAA18238 for ; Wed, 12 Jul 2000 13:24:54 -0400 Message-ID: <396CB850.4DA9C972@travel-net.com> Date: Wed, 12 Jul 2000 14:26:24 -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] Amicus trial brief outline 1 References: <000101bfec2b$c897be80$87ce0593@ia.nsc.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 minor quibble: instead of > or not cost-free to access without some > > additional act of fraud or theft might it not be preferable to say 'not without cost proportional to the original cost'? or some better wording. the point being that if you can get a $100 widget by spending 10 bucks its not cost-free access but still worth doing... John Zulauf wrote: > > >I) DeCSS doesn't meet statutory requirments under 1201(a)(2) > > A) No "circumvention" - authorization models & first sale > > B) Fails each of (a)(2)(A,B,C) > > C) CSS not "access control", but rather "use control" > > For I A may I suggest we propose the following litmus test for 1201(a)(2) > applicability: > > For a TPM to qualify as one that "effectively controls access", stolen or > pirated work must be useless, or not cost-free to access without some > additional act of fraud or theft. The authorization means must be external > to the work, and the player must obtain from these means specific authority > for access for a given user to a given work. The authorization means must be > more than pretextual. "Rubber stamp" authority testing -- e.g. "possession > is authorization" -- where authority is not specifically, tested, verified, > or granted, cannot be considered effective regardless of the quality or > complexity of the underlying TPM. > > Examples of "effective means" would be those requiring dongles, smart cards, > central authorization and/or billing (c.f. Divx, cable PPV), user > authentication (id, usage key), or password. In each of these cases stolen > or pirated works are of little value without also illegally obtainning (by > fraud or theft) the authorization means separate from the work. Bypassing > (let's not use circumvent as that is a legal conclusion not a fact) a TPM's > authorization requirements for these works may be illegal circumvention > (barring other defenses -- fair use, RE, etc). TPM's which do not require > additional information cannot be considered "effective." > > While this test disqualifies CSS as a 1201 "effective" TPM, note that it > neither grants a free hand. Cable-boxes, Divx, "license after sale" works > (e.g. the Adobe Postscript font disk), and many other TPM's stand protected > under 1201. The test distinguishes clearly between publication and license. > Published works, such as DVD disks require no additional authorization past > first sale as a pratical matter. In other words, once a user has purchased a > disk, he or she is never again challenged for their authority to play the > work. For these works, stolen or pirated media is equally valuable as the > original. Licensed works with 1201 "effective" TPM's do require additional > authorization at install or usage time. As such stolen or pirated media is > of little value without an additional theft, fraud, or PPV-rights purchase > to obtain this additional authorization information. For published works > the well understood copyright principles of "first sale" and "fair use" > clearly apply. For licensed work, additional restrictions (subject to > constitutional or statutory restraint, e.g. a license disallowing women or > minorities from access clearly (IANAL) would face legal challenge) apply in > addition to the copyright protections, with any 1201 "effective" TPM also > protected (again subject to contraint) by 1201. > > This litmus test passes the "reasonable man" and "post facto" tests. If a > standard player for the work implements "possession is authorization", if I > don't sign or click a license, if I am not required to seek additional > permission (through technical or other means) to view a purchased work, a > "reasonable man" will view the work a published, whatever private TPM might > be occuring within a given player. On the contrary, in the presence of a > signed or clicked license, or the necessity for additional, direct > permission from or payment to the copyright holder (or assignee) in order to > view (or repeatedly view) a work a "reasonable man" will see the work as > licensed -- not published. The "post facto" test is related. A > point-of-sale "possession is authorization" model such as used by DVD can > allow no additional "post facto" conditions on the purchaser of the work. > For 1201 "effective" means, license agreements spell out directly (and are > agreed to) what rights the licensor and licensee have in terms of the > modification of the license. > > Let's look further at the mechanics of CSS in light of the above litmus test > > A licensed, authorized DVD player assumes a CSS'd disk is authorized a > priori. This implies that stolen or pirated copies of the cyphertext of the > work are equally valuable an orginal. Essentially if the disk is CSS'd and > is be inserted in the drive the use is authorized and thus access is granted > to the cleartext work. No authority to access has been checked, and no > authorization has been presented to the player. The player assumes > "possession is authorization." This "rubber stamp" authorization is only > pretextual. It is mere pretext as no test of authority is performed. > > A licensed, authorized DVD player does not, is not able to verify, > authorize, or grant specific usage rights for a particular work to a > specific user (in fact the SW license specifically disclaims authorization). > A DVD player only tests to see if a disk is a valid DVD Video with > legitimate keys. This could be true if: > > (1) The disk is legitimate > (2) The disk is a exact bit-for-bit duplicate of a legimate disk (by means > available to commercial pirates) > (3) The disk was create with misappropriated keys (obtained by fraud or > theft from a DVD mastering facility) -- imitating a legimate disk. > > A licensed, authorized DVD player does not require a key, a user ID, a > license certificate, serial number, proof-of-purchase, nor even one cereal > box-top or green stamp. The player will play any disk inserted, for any > user, any number of times. While it allows access to the cleartext work, it > does nothing to verify the authority of the user to access the cleartext > work. Implementing, emulating, or imitating such a scheme does not defeat a > TPM based on copyright holder's authority, as the scheme does nothing to > establish copyright holders authorization in the first place. > > ** Note: I've left off the whole issue of region coding. It could be > written in, but would make the whole thing more wordy. Since the P's are > not challenge DeCSS regarding the region codes. They are in fact are on > record the region coding has nothing to do with CSS. Thus we can ignore > region coding or put it under a blanket disclaimer. This is odd, as if they > lose this case, they have also given up region coding as they have excluded > it from consideration as a TPM. All their eggs are in the CSS basket -- > omelet anybody? > > Schumann May 15, 2000 page 85 5-7 > > 5 A. In my professional opinion, DeCSS is > 6 irrelevant to evading the region coding, in your > 7 terminology. > > Also 86 starting at 13 - > 13 Q. I want to know all the different > 14 things that are on a DVD that protect, access, or > 15 protect playing or protect copying, and I use > 16 copying and accessing together. You have to get > 17 access to copy. > > 18 A. There are, to my knowledge, two > 19 mechanisms. There is a mechanism called region > 20 control or region codes, which is part of the DVD > 21 specification, and there is the CSS system itself. > > 22 Q. Have you tried to use DeCSS to see > 23 if it has any effect on region coding? > 24 A. I have absolutely no need to do > 25 that. > > INTERIM COURT REPORTING > > 87 > > 1 Schumann > > 2 Q. Why not? > 3 A. Because I know for a fact that it > 4 has no impact on region coding. > > 5 Q. How do you know that? > > 6 A. Because I have in the past had > 7 intimate and detailed knowledge of how region > 8 coding is implemented in DVDs and that is > 9 completely embodied within the DVD specification > 10 and, therefore, CSS or DeCSS would have no impact > 11 on that. -- 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 Jul 12 14:46:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24789 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:46:03 -0400 Received: from avocet.prod.itd.earthlink.net (avocet.prod.itd.earthlink.net [207.217.121.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA24786 for ; Wed, 12 Jul 2000 14:46:01 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id LAA09916 for ; Wed, 12 Jul 2000 11:44:44 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Wed, 12 Jul 2000 11:44:41 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <8ke03q$pir$1@blowfish.isaac.cs.berkeley.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner, on Monday, July 10, 2000 7:18 PM, wrote >No, because that wouldn't be a complete bit-for-bit copy! > >`Bit-for-bit copy' is a technical term, with a precise meaning. It means >an _exact_ copy of the original, in its entirety. It may have once meant this, but it no longer does. It may only mean exact copy of the user-accessible data on the original. Bit-for-bit copy does not have a precise meaning, which is my point. There are dozens of "bit-for-bit" copy programs out there. They state that they make a "bit-for-bit" copy of a disc. But because DVD was designed to have data not normally accessible, they don't copy this data. There is not an unambiguous meaning to the term bit-for-bit, so any use of the term in legal arguments must clarify the intended meaning. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:53:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA24962 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:53:33 -0400 Received: from avocet.prod.itd.earthlink.net (avocet.prod.itd.earthlink.net [207.217.121.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA24959 for ; Wed, 12 Jul 2000 14:53:31 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id LAA02618 for ; Wed, 12 Jul 2000 11:52:00 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 11:51:57 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <200007111259.IAA28225@soggy-fibers.ai.mit.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote >So, in your view, any technology can be a protection technology, so >long as the copyright owners say it is... and by saying so, they get >an unrestricted and indefinite right to determine how that technology >may be used, by attaching arbitrary conditions to the license. Have I >got that right? I wouldn't say "any technology." I would say any technology explicitly designed and intended for use as a protection mechanism. But the law doesn't say that the technology can't be built on top of an existing technology (as in your example of combining protection with MPEG-2 decoding). >The plaintiffs seem to agree with you ... but that's not how Paul and >I read the law, and it's demonstrably not what Congress had in mind >when they passed it. Congress seemed to expect that technology could be used to afford copyright protection/access control. I doubt they care (or would ever understand) the nuances of how the technology is implemented. An "unrestricted and indefinite right" to determine the use of that technology does seem to be carrying things too far. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:58:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25067 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:58:25 -0400 Received: from avocet.prod.itd.earthlink.net (avocet.prod.itd.earthlink.net [207.217.121.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA25064 for ; Wed, 12 Jul 2000 14:58:19 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id LAA17900 for ; Wed, 12 Jul 2000 11:57:02 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Wed, 12 Jul 2000 11:56:59 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E2F@c100.clearway.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray, on Tuesday, July 11, 2000 1:18 PM, wrote > >The drive emulator would function as a DVD device driver. The driver >would get the key block, and the .vob file, from a hard drive, or across >a network, or whatever. It would be a very difficult task to show that >such a device driver is illegal under 1201. Such a driver would have to implement the CSS key exchange and bus obfuscation algorithm. It probably doesn't fall under 1201, but it does get us back to the original trade secret arguments. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 14:59:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA25110 for dvd-discuss-outgoing; Wed, 12 Jul 2000 14:59:10 -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 OAA25107 for ; Wed, 12 Jul 2000 14:59:09 -0400 Message-ID: <20000712185727.6947.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Wed, 12 Jul 2000 11:57:27 PDT Date: Wed, 12 Jul 2000 11:57:27 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Turning the DMCA around on the RIAA: inoize.com 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 just noticed a Freshmeat announcement for a product by inoize.com, that uses encryption ala the DMCA to AVOID the "piracy problem" that Napster etc have. It's a free service, btw. See http://www.inoize.com . The basic idea is this: stream music between users Napster style, but do it within an encrypted shell that prevents copying the original files. Of course, why bother copying them at all if you can play them without storing them? The funny thing is that the DMCA actually PROTECTS you from claims of contributory copyright infringement. Basically, the same can be done with movies by directing the output from any legit DVD player. As soon as the Plaintiff's fears of an ultra-high-bandwidth world appears, this will be practical to do with movies, but the access to the work will be with the licenced players. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 15:05:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25190 for dvd-discuss-outgoing; Wed, 12 Jul 2000 15:05:53 -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 PAA25187 for ; Wed, 12 Jul 2000 15:05:52 -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:2.21) with ESMTP id PAA13639 for ; Wed, 12 Jul 2000 15:04:37 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA10132; Wed, 12 Jul 2000 15:04:35 -0400 (EDT) Date: Wed, 12 Jul 2000 15:04:35 -0400 (EDT) Message-Id: <200007121904.PAA10132@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <200007111259.IAA28225@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote > >So, in your view, any technology can be a protection technology, so > >long as the copyright owners say it is... and by saying so, they get > >an unrestricted and indefinite right to determine how that technology > >may be used, by attaching arbitrary conditions to the license. Have I > >got that right? > > I wouldn't say "any technology." I would say any technology explicitly > designed and intended for use as a protection mechanism. But the law doesn't > say that the technology can't be built on top of an existing technology (as > in your example of combining protection with MPEG-2 decoding). But how can you tell if a technology was "designed and intended for use as a protection mechanism"? That's the point of my MPEG-DPG hypothetical --- can something that looks for all the world like a compression algorithm, and which includes only components which perform functions analogous to those of other lossy compression algorithms, be turned into a "protection mechanism" simply because some copyright holder asserts that it is one? You agreed in that case that it can. But if that's the case, then, as I said, any technology can be a protection technology so long as the copyright owners say it is... rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 15:19:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25296 for dvd-discuss-outgoing; Wed, 12 Jul 2000 15:19:29 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25293 for ; Wed, 12 Jul 2000 15:19:28 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6CJIHA29114 for ; Wed, 12 Jul 2000 14:18:17 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id OAA14310 for ; Wed, 12 Jul 2000 14:18:16 -0500 (CDT) Date: Wed, 12 Jul 2000 14:18:15 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 12 Jul 2000, Jim Taylor wrote: > Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote > >So, in your view, any technology can be a protection technology, so > >long as the copyright owners say it is... and by saying so, they get > >an unrestricted and indefinite right to determine how that technology > >may be used, by attaching arbitrary conditions to the license. Have I > >got that right? > > I wouldn't say "any technology." I would say any technology explicitly > designed and intended for use as a protection mechanism. But the law doesn't > say that the technology can't be built on top of an existing technology (as > in your example of combining protection with MPEG-2 decoding). But then what about ASF? For those who don't know, ASF is a proprietary microsoft format, for which they have several patents. They have threatend open source devlopers who formerly had included asf-playing capability. If this format was used on DVDs, could it be a TPM? It is identical to the case of the modified MPEG previously described, but it was not designed for copyright protection (or anything related thereto). sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 15:31:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25578 for dvd-discuss-outgoing; Wed, 12 Jul 2000 15:31:51 -0400 Received: from avocet.prod.itd.earthlink.net (avocet.prod.itd.earthlink.net [207.217.121.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25575 for ; Wed, 12 Jul 2000 15:31:50 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id MAA27578 for ; Wed, 12 Jul 2000 12:30:31 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 12:30:28 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <000201bfeb7f$1b28dce0$87ce0593@ia.nsc.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th, on Wednesday, July 12, 2000 9:38 AM, wrote [snip] >> Of course, this reading would give them the power to assert a >> patent-like monopoly over *any* process which is required to gain >> access to their work --- but that was pretty much the upshot, at least >> so far, of my colloquy with Jim Taylor, who knows the plaintiffs >> better than most of us and may well be the best proxy for them we're >> likely to get. Glad to see that my attempted role as devil's advocate is understood. ;-) John Zulauf, on Tuesday, July 11, 2000 2:30 PM, wrote > >You have me baffled. For DVD's when else can "the authorization of the >copyright holder" take place? Remember that unlike software, et. al. the >DVD doesn't come with a click or shrink wrap license. It is clearly a >**published work** -- first sale gives the authorization under any >conditions stated at that sale. Since the copyright holder has no control over sale or disposition of discs, how can sale be a meaningful authorization? If I pay $20 for a pirated disc, does that authorize it? In my view, the authorization happens at _access time_, not _acquisition time_. >If there are no conditions limiting the >choice of decryption/decode/player technology imposed at the point of >sale -- IANAL -- I don't see that any can be enforced. It's possible the Ps will argue that the DVD-Video logo is the link. The logo can't be used on players unless it is licensed and the player has been shown to be compatible with the specification. The specification doesn't include CSS, but it does stipulate that copy protection can be used. The logo can be used on disc packaging for "promotional purposes" without licensing. Admittedly, this is a rather shaky argument. >CSS assumes a CSS'd disk is authorized a priori. Essentially if the disk is >CSS'd and is be inserted in the drive the use is authorized and thus access >is granted to the cleartext work. No authority to access has been checked, >and no authorization has been presented to the player. The player assumes >"possession is authorization." This "rubber stamp" authorization is only >pretextual. Again, it is mere pretext as no test of authority is performed. Here's where we disagree, mostly the on the meaning of authority and what it means to grant it. Authority to access is accomplished by the presence of CSS keys. Possession is irrelevant. It does not matter how one obtains a copy of the work, as long as the medium presents itself as containing a legitimate copy of the work. >The reason people keep bringing up the "stolen disk" issue is that with a >non-pretextual authorization system -- a stolen disk is of little value (not >so with DVD). For a PPV, dongle, smart card, or password protected system, >such Divx, use of a stolen disk would be prevented, require some additional >theft (the legimate owner's Divx player, smart card, dongle, or password >list) or cost the thief (or successor) possesor to utilize the stolen media. As we have established, Divx does not distinguish stolen disks. It might be possible to create a system that did, but only with complex associations of ownership to licensed playback equipment by presenting some form of ID at the point of sale. This is far beyond the authorization intended by DMCA. >>CSS is >>designed to check if the copy of the work is a legitimate copy. > >CSS does no such thing and by design cannot. It only tests to see if a disk >is a valid DVD Video with legitimate keys. This could be true if: > >(1) The disk is legitimate >(2) The disk is a exact bit-for-bit duplicate of a legimate disk (by means >available to commercial pirates) >(3) The disk was create with misappropriated keys -- imitating a legimate >disk. The fact that CSS fails to do well what was intended to do doesn't change the design. Yes, a pirated complete bit-for-bit copy fools CSS. Yes, a disc created with illegitimate keys fools CSS. But from the view of the plaintiffs, this is a separate problem that has nothing to do with circumvention or authorization of access. John Zulauf, on Wednesday, July 12, 2000 11:06 AM, wrote >For a TPM to qualify as one that "effectively controls access", stolen or >pirated work must be useless, or not cost-free to access without some >additional act of fraud or theft. The authorization means must be external >to the work, and the player must obtain from these means specific authority >for access for a given user to a given work. The authorization means must be >more than pretextual. "Rubber stamp" authority testing -- e.g. "possession >is authorization" -- where authority is not specifically, tested, verified, >or granted, cannot be considered effective regardless of the quality or >complexity of the underlying TPM. This will never fly. The task of distinguishing stolen works from legitimately acquired works is so monumental that no court would allow it as a condition. You're trying to rewrite DMCA by requiring external authorization. The CSS authority model may indeed be broken, but it's not broken by the fact that a player will play a stolen disc. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 15:37:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA25667 for dvd-discuss-outgoing; Wed, 12 Jul 2000 15:37:06 -0400 Received: from avocet.prod.itd.earthlink.net (avocet.prod.itd.earthlink.net [207.217.121.50]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA25664 for ; Wed, 12 Jul 2000 15:37:05 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by avocet.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id MAA13354 for ; Wed, 12 Jul 2000 12:35:49 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 12:35:46 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th, on Wednesday, July 12, 2000 12:18 PM, wrote > >But then what about ASF? For those who don't know, ASF is a proprietary >microsoft format, for which they have several patents. They have >threatend open source devlopers who formerly had included asf-playing >capability. If this format was used on DVDs, could it be a TPM? It is >identical to the case of the modified MPEG previously described, but it >was not designed for copyright protection (or anything related thereto). ASF by itself is not a protection mechanism. It's merely a container format for streaming data. Using the Microsoft DirectShow and Windows Media tools, any developer can read the contents of ASF files. Windows Media Audio includes encryption mechanisms for digital rights protection. It's these mechanisms that Microsoft is protecting. ASF combined with the DRM features would qualify as a TPM, but that's exactly what the DRM part (not the ASF part) was designed for. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 16:20:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26676 for dvd-discuss-outgoing; Wed, 12 Jul 2000 16:20:10 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA26673 for ; Wed, 12 Jul 2000 16:20:09 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6CKIuA04442 for ; Wed, 12 Jul 2000 15:18:56 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id PAA05794 for ; Wed, 12 Jul 2000 15:18:54 -0500 (CDT) Date: Wed, 12 Jul 2000 15:18:53 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 12 Jul 2000, Jim Taylor wrote: > John Zulauf, on Tuesday, July 11, 2000 2:30 PM, wrote > > > >You have me baffled. For DVD's when else can "the authorization of the > >copyright holder" take place? Remember that unlike software, et. al. the > >DVD doesn't come with a click or shrink wrap license. It is clearly a > >**published work** -- first sale gives the authorization under any > >conditions stated at that sale. > > Since the copyright holder has no control over sale or disposition of discs, > how can sale be a meaningful authorization? If I pay $20 for a pirated disc, > does that authorize it? In my view, the authorization happens at _access > time_, not _acquisition time_. > The copyright holder has total control over the disposition of *legal* copies of their work. (That is the whole point of copyright.) The fact that there can be a flourishing trade in illegal copies proves nothing other than CSS's ineffectiveness. We are not arguing for authorization at any sale, but at first sale, presumable of a legal product. As to access time authorization, the copyright holder has no means of control of the circumstances of access (other than illegal tying ala CSS). Thrfore, from the perspetive of the copyright holder, the two would be identical, barring said illegal arrangements. > >If there are no conditions limiting the > >choice of decryption/decode/player technology imposed at the point of > >sale -- IANAL -- I don't see that any can be enforced. > > It's possible the Ps will argue that the DVD-Video logo is the link. The > logo can't be used on players unless it is licensed and the player has been > shown to be compatible with the specification. The specification doesn't > include CSS, but it does stipulate that copy protection can be used. The > logo can be used on disc packaging for "promotional purposes" without > licensing. Admittedly, this is a rather shaky argument. > But Congress said repeatedly (just ask Rob Thau) that they didn't want to force people to implement the copy protection system. > >CSS assumes a CSS'd disk is authorized a priori. Essentially if the disk > is > >CSS'd and is be inserted in the drive the use is authorized and thus access > >is granted to the cleartext work. No authority to access has been checked, > >and no authorization has been presented to the player. The player assumes > >"possession is authorization." This "rubber stamp" authorization is only > >pretextual. Again, it is mere pretext as no test of authority is > performed. > > Here's where we disagree, mostly the on the meaning of authority and what it > means to grant it. Authority to access is accomplished by the presence of > CSS keys. Possession is irrelevant. It does not matter how one obtains a > copy of the work, as long as the medium presents itself as containing a > legitimate copy of the work. > > >The reason people keep bringing up the "stolen disk" issue is that with a > >non-pretextual authorization system -- a stolen disk is of little value > (not > >so with DVD). For a PPV, dongle, smart card, or password protected system, > >such Divx, use of a stolen disk would be prevented, require some additional > >theft (the legimate owner's Divx player, smart card, dongle, or password > >list) or cost the thief (or successor) possesor to utilize the stolen > media. > > As we have established, Divx does not distinguish stolen disks. It might be > possible to create a system that did, but only with complex associations of > ownership to licensed playback equipment by presenting some form of ID at > the point of sale. This is far beyond the authorization intended by DMCA. > > > >>CSS is > >>designed to check if the copy of the work is a legitimate copy. > > > >CSS does no such thing and by design cannot. It only tests to see if a > disk > >is a valid DVD Video with legitimate keys. This could be true if: > > > >(1) The disk is legitimate > >(2) The disk is a exact bit-for-bit duplicate of a legimate disk (by means > >available to commercial pirates) > >(3) The disk was create with misappropriated keys -- imitating a legimate > >disk. > > The fact that CSS fails to do well what was intended to do doesn't change > the design. Yes, a pirated complete bit-for-bit copy fools CSS. Yes, a disc > created with illegitimate keys fools CSS. But from the view of the > plaintiffs, this is a separate problem that has nothing to do with > circumvention or authorization of access. > > John Zulauf, on Wednesday, July 12, 2000 11:06 AM, wrote > > >For a TPM to qualify as one that "effectively controls access", stolen or > >pirated work must be useless, or not cost-free to access without some > >additional act of fraud or theft. The authorization means must be external > >to the work, and the player must obtain from these means specific authority > >for access for a given user to a given work. The authorization means must > be > >more than pretextual. "Rubber stamp" authority testing -- e.g. "possession > >is authorization" -- where authority is not specifically, tested, verified, > >or granted, cannot be considered effective regardless of the quality or > >complexity of the underlying TPM. > > This will never fly. The task of distinguishing stolen works from > legitimately acquired works is so monumental that no court would allow it as > a condition. You're trying to rewrite DMCA by requiring external > authorization. The CSS authority model may indeed be broken, but it's not > broken by the fact that a player will play a stolen disc. > > > -- > Jim Taylor > Author of DVD Demystified and the DVD FAQ > > sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 16:35:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27024 for dvd-discuss-outgoing; Wed, 12 Jul 2000 16:35:30 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA27021 for ; Wed, 12 Jul 2000 16:35:29 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id QAA27768 for ; Wed, 12 Jul 2000 16:34:19 -0400 Date: Wed, 12 Jul 2000 16:34:19 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 07/12/00 at 12:30, 'twas brillig and Jim Taylor scrobe: > sam th, on Wednesday, July 12, 2000 9:38 AM, wrote > [snip] > >> Of course, this reading would give them the power to assert a > >> patent-like monopoly over *any* process which is required to gain > >> access to their work --- but that was pretty much the upshot, at least > >> so far, of my colloquy with Jim Taylor, who knows the plaintiffs > >> better than most of us and may well be the best proxy for them we're > >> likely to get. > > Glad to see that my attempted role as devil's advocate is understood. ;-) > > > John Zulauf, on Tuesday, July 11, 2000 2:30 PM, wrote > > > >You have me baffled. For DVD's when else can "the authorization of the > >copyright holder" take place? Remember that unlike software, et. al. the > >DVD doesn't come with a click or shrink wrap license. It is clearly a > >**published work** -- first sale gives the authorization under any > >conditions stated at that sale. > > Since the copyright holder has no control over sale or disposition of discs, > how can sale be a meaningful authorization? If I pay $20 for a pirated disc, > does that authorize it? In my view, the authorization happens at _access > time_, not _acquisition time_. [...] What? The copyright holder has no control over the sale of the discs? How did Media Play come to have them, then? Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 17:12:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27293 for dvd-discuss-outgoing; Wed, 12 Jul 2000 17:12:17 -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 RAA27290 for ; Wed, 12 Jul 2000 17:12:15 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C2XK>; Wed, 12 Jul 2000 14:11:10 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CD4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 14:11:09 -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: sam th [mailto:sam@uchicago.edu] > Sent: Wednesday, July 12, 2000 12:18 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > On Wed, 12 Jul 2000, Jim Taylor wrote: > > > Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote > > >So, in your view, any technology can be a protection technology, so > > >long as the copyright owners say it is... and by saying > so, they get > > >an unrestricted and indefinite right to determine how that > technology > > >may be used, by attaching arbitrary conditions to the > license. Have I > > >got that right? > > > > I wouldn't say "any technology." I would say any technology > explicitly > > designed and intended for use as a protection mechanism. > But the law doesn't > > say that the technology can't be built on top of an > existing technology (as > > in your example of combining protection with MPEG-2 decoding). > > But then what about ASF? For those who don't know, ASF is a > proprietary > microsoft format, for which they have several patents. They have > threatend open source devlopers who formerly had included asf-playing > capability. If this format was used on DVDs, could it be a TPM? It is > identical to the case of the modified MPEG previously > described, but it > was not designed for copyright protection (or anything > related thereto). No ... but you can't implement it w/o licensing (or violating) their patent. In this case whether it is asserted to be a protection mechanism or not is irrelevant. The freeware developers must pay up, or not include the feature. -- -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 Jul 12 17:12:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27301 for dvd-discuss-outgoing; Wed, 12 Jul 2000 17:12:22 -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 RAA27298 for ; Wed, 12 Jul 2000 17:12:21 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C2XL>; Wed, 12 Jul 2000 14:11:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CD5@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Wed, 12 Jul 2000 14:11:14 -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 Taylor [mailto:jtfrog@usa.net] > Sent: Wednesday, July 12, 2000 11:52 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote > >So, in your view, any technology can be a protection technology, so > >long as the copyright owners say it is... and by saying so, they get > >an unrestricted and indefinite right to determine how that technology > >may be used, by attaching arbitrary conditions to the > license. Have I > >got that right? > > I wouldn't say "any technology." I would say any technology explicitly > designed and intended for use as a protection mechanism. Even if the design is so poor that it can not, in practice, be used to protect anything? You seem to be saying that intent is all that matters... -- -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 Jul 12 18:11:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28136 for dvd-discuss-outgoing; Wed, 12 Jul 2000 18:11:48 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28133 for ; Wed, 12 Jul 2000 18:11:46 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PNNP>; Wed, 12 Jul 2000 18:15:05 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E39@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Comments at Senate Judiciary Hearing Date: Wed, 12 Jul 2000 18:15:04 -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 By the way, at the Senate Judiciary Hearing, the following comments were made about DVDs. I transcribed this myself, because I don't think the official hearing transcripts has yet been released. There are some problems with his analysis, but on the whole his comments could be helpful. ------------ The interesting thing about copyright law is it basically assumes the reality of these technologies. There's no real physical way -- and I would use the term "physical" as in "physics" -- to keep someone who has access to something from being able to duplicate it. Umm, its kind of a fundamental law, if I can see this, I can copy it, if I get it on my computer I can duplicate it. You can have the appearance, but you cannot really actually keep it from happening. The reason is really kind of fundamental to cryptography -- I actually used to be at PGP, or Pretty Good Privacy which is one of the leading encryption [ Sen Leahy: I know, I love it ]. If you and I wanted to send email to each other, we could be decently sure that no one else in the room could read it. But I'd have to trust you, because if I told you company confidential information about eMusic, you could call the New York Times with that same information. So the disclosure problem is always a problem to cryptographic systems. And the other problem is more fundamental to how consumers use downloadable music. What customers really want is real strong flexibility, and unlike Hillary's[1] response to fair use, I'll draw some interesting lines. I think it is fair use for you to space shift, as the ninth circuit court of appeals has said, which is basically taking a CD, putting it on your hard drive, putting it on a portable player...I think it is fair use inside of your family basically...to copy because we are talking about personal performance, personal private use for non-commercial means. I think its stepping over the line when we make music available to others. But the interesting thing is, when you make music available to others, its pretty obvious, especially if you are at all effective -- because, if you are not effective no one cares -- if you make music available on your little geocities web page, and no one ever comes, it clearly doesn't impact sales of recorded music. But if twenty million people come, well, unfortunately we all have to take note. The interesting thing is though, and this is coming back to what I was saying about the net act and enforcement, its not exactly legal to make music or software or whatever that copyrighted, available without permission, and you know, quite a few people have literally plea bargained out jail terms on net act violations. A collage student in Oregon, actually was found guilty of pirating both MP3s and software. So from that perspective, I don't think the fair use argument is all that clouded, I think fair use is pretty simple. If you are doing something that doesn't replace a sale, you pretty much have the right to do that as a consumer. If you are a business trying to profit from that, you are going to have to license. One of the important things in the kind of debate here is, you know, a lot of people say "well, you know, people should license Napster because clearly you are going to have twenty million voters complaining to you", but its interesting that generally penalizes people like myself and others who have generally done it right who've basically said "we like you to upload your songs and exercise you actual fair use rights. We won't violate any laws, in fact we will work directly with and have investment from, in my case, the major labels and others who are interested in that business and we'll play by the rules" So, its an interesting situation in some senses because what we are talking about around these systems is private legislation. Basically, taking copyright usage and using the DMCA's exemption to technical circumvention to be able to really litigate a system without necessarily having the fine ladies and gentlemen in front of us bless or not bless that system. [[ At this point, Sen. Leahy says his time is up, and asks to contact panel members offline ]] May I make one last point? [ Sen Leahy: Sure, of course ] . Interestingly, DVD copy protection was broken not for malice, but frankly for what I think was probably a pretty legitimate fair use reason a -- I believe -- Finnish 16 year old, who had a Linux machine at home had gone with his parents to France and really wanted to be able to view country coded French movies (the French were always very excited to have French products exported instead of American products imported) -- he reverse engineered the DVD copy protection system so that he could watch...basically perform his right to a private performance which by the way here in the US we specifically have the right to a private performance by any means necessary...to be able to watch DVDs and in fact its interesting that very few DVDs are available downloadably but, its questionable whether he is ever going to be able to exercise that fair use right and especially in a situation where the copyright licenses of the operating system he was using -- Linux -- are actually somewhat opposed, diametrically opposed, to the ability to maintain control over a secret system like DVD copy control. So I think its important to note that the first major challenge, if you will, to the anti-circumvention technology was frankly probably legitimate fair use. -- Gene Hoffman Jr. eMusic.com / CEO [1] Head of the RIAA From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 19:08:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28629 for dvd-discuss-outgoing; Wed, 12 Jul 2000 19:08:51 -0400 Received: from mail.ivc.com (ivc1.ivc.com [216.27.56.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28626 for ; Wed, 12 Jul 2000 19:08:49 -0400 Received: from [216.27.56.74] (helo=mindspring.com ident=jeffw) by mail.ivc.com with esmtp (Exim 3.15 #1) id 13CVbO-0000mw-00 for dvd-discuss@eon.law.harvard.edu; Wed, 12 Jul 2000 19:07:38 -0400 Message-ID: <396CF9F4.BCE452AD@mindspring.com> Date: Wed, 12 Jul 2000 19:06:28 -0400 From: Jeff Waller X-Mailer: Mozilla 4.7 [en] (X11; I; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Why I love Justice Stevens References: <5A8391CA2D9ED311AFAA080009D982B10B1CCF@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > -----Original Message----- > > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > sam th wrote: > > > > > > > > > > > (3) Does the tying arrangement force purchases that would > > not otherwise be > > > made? > > > Yes. Some of us might want to get our DVD players from > > people other than > > > those authorized by the DVDCCA. > > > > One thing that bothers me is what are the other players > > *avaliable right now* > > or indeed avaliable back in October that consumers are being denied > > access? Perhaps none. What DVD-CCA and the MPAA have in effect > > eliminated the competition before the fact. > > Let's assume that somebody wanted to make another player. They > have two choices: > 1) License CSS > 2) Reverse-engineer CSS > > If option 2 is blocked by 1201, then option 1 becomes the only > thing left. 1201 in effect is providing patent protections for ... [ patent-like qualities description elided ] But what are you arguing? Test #3 described in the original message appeared to me to be a test on the impact of existing competition. Possible affects on the creation of competitive products in the future are the domain of test #4. -Jeff From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 19:22:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28762 for dvd-discuss-outgoing; Wed, 12 Jul 2000 19:22:05 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28758 for ; Wed, 12 Jul 2000 19:22:04 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id TAA26193; Wed, 12 Jul 2000 19:21:47 -0400 Message-ID: <396CFD8B.90480B8B@mit.edu> Date: Wed, 12 Jul 2000 19:21:47 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <5A8391CA2D9ED311AFAA080009D982B10B1CD4@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > > -----Original Message----- > > From: sam th [mailto:sam@uchicago.edu] > > Sent: Wednesday, July 12, 2000 12:18 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > > > > On Wed, 12 Jul 2000, Jim Taylor wrote: > > > > > Robert S. Thau, on Tuesday, July 11, 2000 5:59 AM, wrote > > > >So, in your view, any technology can be a protection technology, so > > > >long as the copyright owners say it is... and by saying > > so, they get > > > >an unrestricted and indefinite right to determine how that > > technology > > > >may be used, by attaching arbitrary conditions to the > > license. Have I > > > >got that right? > > > > > > I wouldn't say "any technology." I would say any technology > > explicitly > > > designed and intended for use as a protection mechanism. > > But the law doesn't > > > say that the technology can't be built on top of an > > existing technology (as > > > in your example of combining protection with MPEG-2 decoding). > > > > But then what about ASF? For those who don't know, ASF is a > > proprietary > > microsoft format, for which they have several patents. They have > > threatend open source devlopers who formerly had included asf-playing > > capability. If this format was used on DVDs, could it be a TPM? It is > > identical to the case of the modified MPEG previously > > described, but it > > was not designed for copyright protection (or anything > > related thereto). > > No ... but you can't implement it w/o licensing (or violating) > their patent. In this case whether it is asserted to be a > protection mechanism or not is irrelevant. The freeware > developers must pay up, or not include the feature. > But the point here is if "any technology designed and intended for use as a protection mechanism" is a TPM, then ASF qualifies as a TPM because one of Microsoft's interests in maintaining control of ASF is so that it tie rights management to ASF. This means that even if we go to court and get Microsoft's patent invalidated, free software developers _still_ cannot implement ASF because it is a TPM. This means TPMs are a new non-patent, non-copyright, non-trade-secret form of intellectual property (Microsoft can exclude me from using their ideas even if I am not infringing on their patents or copyrights, and I haven't stolen their trade secrets). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 19:57:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28954 for dvd-discuss-outgoing; Wed, 12 Jul 2000 19:57:37 -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 TAA28951 for ; Wed, 12 Jul 2000 19:57:36 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CJCX>; Wed, 12 Jul 2000 16:56:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CD9@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Why I love Justice Stevens Date: Wed, 12 Jul 2000 16:56:31 -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: Jeff Waller [mailto:jeff-w@mindspring.com] > Sent: Wednesday, July 12, 2000 4:06 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Why I love Justice Stevens > > > Richard Hartman wrote: > > > > -----Original Message----- > > > From: Jeff Waller [mailto:jeff-w@mindspring.com] > > > sam th wrote: > > > > > > > > > > > > > > > (3) Does the tying arrangement force purchases that would > > > not otherwise be > > > > made? > > > > Yes. Some of us might want to get our DVD players from > > > people other than > > > > those authorized by the DVDCCA. > > > > > > One thing that bothers me is what are the other players > > > *avaliable right now* > > > or indeed avaliable back in October that consumers are > being denied > > > access? Perhaps none. What DVD-CCA and the MPAA have in effect > > > eliminated the competition before the fact. > > > > Let's assume that somebody wanted to make another player. They > > have two choices: > > 1) License CSS > > 2) Reverse-engineer CSS > > > > If option 2 is blocked by 1201, then option 1 becomes the only > > thing left. 1201 in effect is providing patent protections for ... > > [ patent-like qualities description elided ] > > But what are you arguing? Test #3 described in the original message > appeared to me to be a test on the impact of existing competition. > Possible > affects on the creation of competitive products in the future are the > domain of test #4. I think what I am arguing is that this law is attempting to take over patent authority, and might be overreaching and thus in-valid. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 20:29:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29125 for dvd-discuss-outgoing; Wed, 12 Jul 2000 20:29:56 -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 UAA29122 for ; Wed, 12 Jul 2000 20:29:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CJ1K>; Wed, 12 Jul 2000 17:28:51 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CDA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Streambox case Date: Wed, 12 Jul 2000 17:28:50 -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 > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > > Recording for time shifting has been upheld in the context of changing > when an otherwise free (gift) broadcast would be viewed. It isn't > really relevant to RealNetworks since you can access on demand anyway. Only while connected. Consider the following: time shifting: I want to view the presentation on my laptop (to make better use, perhaps, of the 45 minute commute on the train) format shifting: I have a low bandwidth connection (old modem) and can not make use of the streaming source. solution: store at slow speed then view locally Both would seem to be fair use to me, and not answerable by your "access on demand" response. -- -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 Jul 12 20:41:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29247 for dvd-discuss-outgoing; Wed, 12 Jul 2000 20:41:52 -0400 Received: from csimo02.mx.cs.com (csimo02.mx.cs.com [205.188.156.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA29244 for ; Wed, 12 Jul 2000 20:41:51 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.cs.com (mail_out_v27.10.) id x.3b.7332c93 (4420) for ; Wed, 12 Jul 2000 20:40:10 -0400 (EDT) Message-ID: <3b.7332c93.269e69e9@cs.com> Date: Wed, 12 Jul 2000 20:40:09 EDT Subject: Re: [dvd-discuss] Amicus trial brief outline 1 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 105 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Just because Junger dealt with encryption and this case does doesn't provide the parallel. If DeCSS was a trade secret, there's a whole new ball game. If I've read correctly, Junger used publically available algorithms or something like that. Trade secrets are protected under the law. It doesn't make the DMCA good law, but maybe its better to let the issue lie dormant than to raise it with a large hole in it. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 21:49:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA29528 for dvd-discuss-outgoing; Wed, 12 Jul 2000 21:49:04 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA29525 for ; Wed, 12 Jul 2000 21:49:03 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13CY6S-0001Zq-00; Wed, 12 Jul 2000 18:47:52 -0700 Date: Wed, 12 Jul 2000 18:47:52 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Streambox case Message-ID: <20000712184752.Z9454@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1CDA@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CDA@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Jul 12, 2000 at 05:28:50PM -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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > > > > Recording for time shifting has been upheld in the context of changing > > when an otherwise free (gift) broadcast would be viewed. It isn't > > really relevant to RealNetworks since you can access on demand anyway. > > Only while connected. Consider the following: > > time shifting: I want to view the presentation on my laptop > (to make better use, perhaps, of the 45 minute commute > on the train) > > > format shifting: I have a low bandwidth connection (old > modem) and can not make use of the streaming source. > solution: store at slow speed then view locally > > Both would seem to be fair use to me, and not answerable by > your "access on demand" response. The RealNetworks clients try to accomodate the second use already, but they don't necessarily do it well enough for all users' satisfaction. I'm still not quite getting Bryan Taylor's argument that there are possibly legitimate and unique paracopyright rights in streams which don't apply to tangible media. It seems really strange to me. I can make lots of arguments about this, but most of them are only interesting to a few people (depending on what views they've already adopted about other issues). Here's an extreme one: paracopyright on streams can be used to prevent copyright holders from locating and verifying watermarks which they would use to allege copyright infringement, because the watermark may well only be "visible" if you can feed an unencrypted digital stream to your fancy proprietary watermark-detection software. I don't personally consider this a big problem, but I do consider it a very realistic possibility. If RealNetworks doesn't want to support automated player detection of Universal's watermarks, and I run a service providing illegal RealAudio streams of Universal's watermarked content, then I, or RealNetworks, might be able to sue Universal when it makes an unauthorized player to detect its own watermarks. :-) Pamela Samuelson pointed out at the BayFF meeting that original paracopyright proposals would have made wiretapping of encrypted communications in criminal cases illegal (which doesn't bother many EFF members, but did bother a lot of paracopyright proponents among Congressional staff). So current paracopyright law might make some investigations of civil copyright violations illegal. That's just one random hypothetical among many. ("Compound, incomplete hypothetical, assumes facts not in evidence...") -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 22:44:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA30107 for dvd-discuss-outgoing; Wed, 12 Jul 2000 22:44:30 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA30104 for ; Wed, 12 Jul 2000 22:44:28 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13CYy5-0001p4-00; Wed, 12 Jul 2000 19:43:17 -0700 Date: Wed, 12 Jul 2000 19:43:17 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] LOC post-hearing comments are available Message-ID: <20000712194317.B9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000710152506.B2309@localhost> <20000711111741.B576@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000711111741.B576@localhost>; from fenimore@roadrunner.com on Tue, Jul 11, 2000 at 11:17:42AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > > It's worth mentioning that the CSS license requires a separate protection > > system such as DTCP when the content is separated from the media and the > > player. > > My apologies, but I don't know what the acronym DTCP means. In their original form, the technical implementation principles for DVD-Video copy protection stipulated that only encrypted digital outputs would be allowed from compliant playback systems. In October 1996, when these principles were adopted, the CPTWG started the Data Transmission Discussion Group, in order to define the requirements of and solicit technical proposals for secure digital transmission technologies. Eleven proposals were presented, but once again the passage of time has seen the field narrow till currently only two approaches appear to be under active development and promotion. The best-known approach is the Digital Transmission Content Protection (DTCP) method. It was developed in the first instance for the IEEE 1394 bus by Hitachi, Intel, Matsushita, Sony, and Toshiba. In this method, the source device (say, a DVD player) and destination device (such as a television or digital disc recorder) must first perform an authentication and key exchange (AKE) procedure, which ensures that only compliant destination devices may access the content. After that, the source device may proceed to encrypt and transmit the content, along with the keys the destination needs to perform decryption. http://teaser.ieee.org/pubs/spectrum/9910/dvd.html DTCP has some competition, but it seems that it's the most popular spec among companies with an interest in this stuff. (Can someone refresh my memory as to whether DTCP is the same as 5C?) I think the other proposal alluded to in the IEEE piece is HDCP (High-bandwidth Digital Copy Protection). -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 12 23:00:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30268 for dvd-discuss-outgoing; Wed, 12 Jul 2000 23:00:08 -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 XAA30265 for ; Wed, 12 Jul 2000 23:00:07 -0400 Received: from ip16.bedford8.ma.pub-ip.psi.net ([38.32.78.16]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13CZDE-0005PK-00 for dvd-discuss@eon.law.harvard.edu; Wed, 12 Jul 2000 22:58:56 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "authority" Date: Wed, 12 Jul 2000 22:52:50 -0400 Message-ID: References: <5A8391CA2D9ED311AFAA080009D982B10B1CBD@mail2.onetouch.com> <20000710132351.B1828@localhost> 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 XAA30266 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >On Mon, 10 Jul 2000 13:23:51 -0600, Paul Fenimore wrote: > > >>Right. But this implies that "ciphertext" != "the work". Yet in >>an infringement action, the court would doubtlessly find that >>industrial/Hong Kong duplicators of the ciphertext had make illegal >>copies of "the work". Then I wrote: >Because the data is fixated, I think there is a case to be made that >only the ciphertext is the work. (DVD player translation of these fixated bits >is only one possible outcome. While MPAA approves of only one translation, >we should be free to stream the encrypted bits backwards if so desired. >This is akin to rappers scratching vinyl for effects.) Think of an LP. Is only >the 33rpm version copyrighted? Sorry for being back here behind the curve, but something's bugging me about what is actually copyrighted/published. The following may seem absurd and simplistic, but what is actually copyrighted in an encrypted/obfuscated/scrambled work? [I would think the plaintext, or a version of the data before scrambling would be the protected work, but if this is dependent on a particular set of processes that have to occur in a specific order, perhaps that version is too obscure for copyright protection. Also, if the version supplied to LOC is ciphertext, isn't the copyrighted limited to that? ] FI, what if I [as Neal Stephenson] write a program [diff script?] that converts Cryptonomicon into The Shining, then I publish the ciphertext (now identical to The Shining) protected by my custom program? What would _that_ mean? Basically, how many dependencies must the LOC accept? I'm thinking that the ciphertext == the protected work and any decryptions are translations--but to be protected, there must be some public proof that they are truly derived from the original ciphertext. Otherwise, given the right program, anyone could claim ownership of anything __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 00:53:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31852 for dvd-discuss-outgoing; Thu, 13 Jul 2000 00:53:43 -0400 Received: from web120.yahoomail.com (web120.yahoomail.com [205.180.60.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA31849 for ; Thu, 13 Jul 2000 00:53:41 -0400 Received: (qmail 580 invoked by uid 60001); 13 Jul 2000 04:52:27 -0000 Message-ID: <20000713045227.579.qmail@web120.yahoomail.com> Received: from [128.122.253.144] by web120.yahoomail.com; Wed, 12 Jul 2000 21:52:27 PDT Date: Wed, 12 Jul 2000 21:52:27 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] Hatch Warns Labels, Don't Make Me Come Over There and Spank You To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm forwarding an excerpt and URL from EMusic detailed the latest development in WDC concerning Napster and fair use. ------ > Hatch Warns Labels, Don't Make Me Come Over There > and Spank You > by: Charles C. Mann > WASHINGTON -- Get on the stick, labels.

> That was the message of Republican Senator Orrin > G. Hatch to the recording industry during a > remarkable hearing of the Senate Judiciary Committee > on Tuesday. Facing a veritable who's who of the > music-copyright wars, Chairman Hatch threatened -- > in surprisingly direct terms -- to force the music > labels and publishers, by legislation, to make their > content digitally available for a standard fee if > the record business continued to ensnarl e-music > with lawsuits. As a capper, Hatch suggested that > Congress might even go so far as to offer its own > comprehensive definition of ''fair use . . . > http://www.inside.com/story/Story_Cached/0,2770,6643_9,00.html __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 01:22:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32342 for dvd-discuss-outgoing; Thu, 13 Jul 2000 01:22:15 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32339 for ; Thu, 13 Jul 2000 01:22:13 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA08687 for ; Wed, 12 Jul 2000 22:20:56 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA05044; Wed, 12 Jul 2000 22:19:30 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Amicus trial brief outline 1 Date: 12 Jul 2000 22:18:23 -0700 Organization: A poorly-installed InterNetNews site Lines: 7 Distribution: isaac Message-ID: <8kjjev$4td$1@blowfish.isaac.cs.berkeley.edu> References: <3b.7332c93.269e69e9@cs.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If DeCSS was a trade secret, there's a whole new ball game. To the best of my knowledge, the plaintiffs in the NY case have not attempted to claim that CSS is a trade secret. Trade secret is irrelevant to the legal arguments in the NY case, as far as I can tell. Maybe you are thinking of the California case, which is entirely separate. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 01:43:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32485 for dvd-discuss-outgoing; Thu, 13 Jul 2000 01:43:25 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32482 for ; Thu, 13 Jul 2000 01:43:23 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA08734 for ; Wed, 12 Jul 2000 22:42:06 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA05088; Wed, 12 Jul 2000 22:40:39 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 12 Jul 2000 22:39:31 -0700 Organization: A poorly-installed InterNetNews site Lines: 9 Distribution: isaac Message-ID: <8kjkmj$4ur$1@blowfish.isaac.cs.berkeley.edu> References: <000201bfeb7f$1b28dce0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article , Jim Taylor wrote: > Authority to access is accomplished by the presence of CSS keys. Great! I'll be sure to have my (hypothetical) DeCSS variant include the CSS keys, so that it can be considered authorized to play DVD's. In other words, unless I'm misunderstanding your meaning, this intepretation seems to take all the bite out of the DMCA. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 01:51:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32598 for dvd-discuss-outgoing; Thu, 13 Jul 2000 01:51:51 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32595 for ; Thu, 13 Jul 2000 01:51:50 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA08768 for ; Wed, 12 Jul 2000 22:50:33 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA05142; Wed, 12 Jul 2000 22:49:07 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 12 Jul 2000 22:48:57 -0700 Organization: A poorly-installed InterNetNews site Lines: 24 Distribution: isaac Message-ID: <8kjl89$50l$1@blowfish.isaac.cs.berkeley.edu> References: <000201bfeb7f$1b28dce0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > >>CSS is designed to check if the copy of the work is a legitimate copy. > > > >CSS does no such thing and by design cannot. It only tests to see if a > >disk is a valid DVD Video with legitimate keys. > > The fact that CSS fails to do well what was intended to do doesn't change > the design. Yes, a pirated complete bit-for-bit copy fools CSS. Yes, a disc > created with illegitimate keys fools CSS. CSS was never designed to detect illegitimate copies, and I think I can prove it. It's not that "CSS fails to do what it was intended to do". CSS was simply never intended to do this in the first place. I wasn't present for the discussions myself, so I'm going on second-hand information here, but I can give you citations to technical articles published by folks who claim to have been involved in the design of the security measures. They say that CSS does not stop bit-for-bit copying. They say that CSS does not stop serious attempts to pirate DVD's. They say that CSS will only "keep honest people honest". And, frankly, this should be no surprise. There is no way CSS could ever do anything more than that, given the current key management structure and the insistence on providing software players. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 07:22:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA02057 for dvd-discuss-outgoing; Thu, 13 Jul 2000 07:22:17 -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 HAA02054 for ; Thu, 13 Jul 2000 07:22:14 -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:2.21) with ESMTP id HAA28622 for ; Thu, 13 Jul 2000 07:21:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA23593; Thu, 13 Jul 2000 07:21:03 -0400 (EDT) Date: Thu, 13 Jul 2000 07:21:03 -0400 (EDT) Message-Id: <200007131121.HAA23593@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396CA032.3B6853BD@mninter.net> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > > I) Authority and authority models > > A) Plaintiff's model, as outlined above > > I will restate my position that the plaintiff's authority model is > unknown. You have a theory, I have a theory, they're a little > different--and that's something that should be brought to light. Well, the plaintiffs' authorization theory is a little thin in the depositions, where I wasted some time looking for it, because they've buried a lot of relevant information under attorney-client privilege, and most of the remaining discussion of it seems to have been marked confidential (judging by some questions whose answers got whited out). But there's a fair bit of information MPAA representative, and Time-Warner lawyer Dean Marks' comments in the Stanford hearing, to which Wendy has referred us. Such as: 16 MR. CARSON: Are [DVD buyers] authorized to view 17 [their DVD] on any machine they can find, that they can make 18 to view it? 19 MR. MARKS: No, no. They're authorized 20 to view it on a licensed device. If someone were to 21 buy a VHS cassette, and they didn't have a VHS 22 player, are they authorized to disassemble the 23 videocassette, reproduce the film in there in 35- 24 millimeter print and play it on their movie camera? 25 I don't think so. [RIAA v. Diamond might lead one to a different conclusion, but we go on...] PAGE 249 1 MR. CARSON: Okay. But, first of all, 2 there's no contractual privity between the purchaser 3 of that DVD and Time Warner, I assume. There's no 4 shrink-wrapped license. You know, you don't sign a 5 license saying, "I agree only to play this on an 6 authorized player," when you purchase the DVD. 7 MR. MARKS: That's correct. And neither 8 is there a shrink-wrapped license when you buy a VHS 9 cassette that's in NTSC format, and you only have a 10 PAL player. So purchasers of a DVD are not entitled to view their DVD "on any machine they can ... make", but *only* on "a licensed device". But that is not due to any contractual obligation they personally have entered into. So, in this passage, Mr. Marks is directly asserting that the general public does not have a right to make a device that will play CSS-format video, because CSS is a "technical protection measure" which is licensed by the MPAA, or their agents. In fact, he uses the phrase "pirate player" elsewhere in the transcript. In other words, as I've said earlier, more or less: 1) "It's a technical protection measure" 2) "We license it, so licensed reading-of-CSS is use authorized by us" 3) "Any unlicensed reading-of-CSS is unauthorized, and therefore circumvention" So, what's a technical protection measure, that they get to restrict it like this? Well, it has something to do with the use of encryption: 9 [Manufacturers] said, "But if that data is 10 scrambled, if it is encrypted, and we want our 11 machines, our computers to make use of that data, 12 then we have a choice. We can either sign up and 13 get a license to decrypt that data and follow the 14 rules and conditions that are in that license. Or 15 our machines will simply pass along the encrypted 16 data, keeping it in encrypted form. We agree that 17 our devices and machines should not be permitted to 18 simply descramble and hack through and encryption 19 system without any sort of authorization or 20 permission." 21 Having reached that understanding, that 22 is the basis upon which we built the CSS system. 23 The CSS system, called Content Scramble System, 24 involves initially scrambling the content on the DVD 25 disk. So it is encrypted, even though that's 26 completely transparent to the user. PAGE 242 1 Because when you put your DVD into your 2 DVD player, or your DVD computer, in most 3 circumstances you just press "Play" and the disk 4 plays. So you don't even necessarily realize that 5 it's encrypted, but the disks are encrypted. But is what he's describing really encryption? Here's the Diffie and Landau definition, once again: We shall describe cryptography for the moment only by what it does: a transformation of a message that makes the message incomprehensible to anyone who is not in posession of secret information that is needed to restore the message to its normal *plaintext* or *cleartext* form. The secret information is called the *key*, and its function is very similar to the function of a door key in a lock: it unlocks the message so that the recipient can read it. But the secret, in this case, is a single transformation that will get you MPEG video off *any* DVD --- it isn't specific to the work in question; "you just press 'Play' and the disk plays". (It certainly doesn't have to do with the efficacy of the collection of LFSRs in a CSS spec as a cipher used for keeping data secret --- for that, it's terrible, and the MPAA knew that at the time the thing was designed). The specification of the single CSS process is itself the "key" that "unlocks" *all* DVDs. So, it certainly looks to me like the upshot here is the same as in my colloquy with Jim Taylor --- on the MPAA's reading of the law, *any* trade-secret process which is necessary to gain access to their works can be described as "encryption", by the MPAA's standard, and then, on their reading, 1201(a) gives them unlimited authority to vet implementations of that process by anyone. Reconciling this with the bald statement in the conference committee's report that 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. is left, for now, as an exercise for the interested reader. , At any rate, that's why I think that this is their model of authority; it's also probably what they're selling to Kaplan, who seems to be buying it. So, if we want to address the topic ourselves, this is what we're up against. BTW, there's plenty of other stuff in Marks' remarks that's absolutely fascinating, in a train-wreck sort of way; take this exchange, for instance... 3 MR. CARSON: Well, if we get a chance, 4 in a while. But I sort of would like to stick with 5 what I was talking about with Mr. Marks. 6 It strikes me that what we are 7 describing is perhaps a copying control device in 8 access control clothing. In other words, you've got 9 a device that controls access to a work, but not in 10 the way that, certainly before this rulemaking 11 began, I thought we were talking about. We were 12 talking about access control devices. 13 In other words, I assumed -- naively, 14 perhaps -- that a technological measure that 15 controls access to a work, the purpose of that is to 16 make sure that authorized users and only authorized 17 users are getting access to the works. So if I paid 18 the price to the copyright owner otherwise be able 19 to use that work, then I'm entitled to use it. 20 And if he somehow gets access to it by 21 circumventing encryption or passwords, or whatever, 22 then she's in trouble because she's not an 23 authorized user. I'm not in trouble because I am. 24 That's got nothing to do, as far as I can tell, with 25 what you're talking about. PAGE 246 1 What you're really talking about, I 2 think, is an access control measure that is designed 3 to channel someone towards a device which has copy 4 controls on it. Is that a fair description, or am I 5 misdescribing it? 6 MR. MARKS: I think it's partially a 7 fair description. I think it is also used -- the 8 fact that the work is encrypted is used to try and 9 guarantee that the user has legitimately -- has 10 legitimate access to the work as well. I mean, I 11 don't think it's completely devoid, the CSS system, 12 of trying to ensure that those people that -- for 13 example, would just simply duplicate the DVD disks - 14 - you know, pirates who would duplicate the DVD 15 disks. 16 And if there were pirate players that 17 were unlicensed, they wouldn't be able to play those 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. 20 MR. CARSON: But a duplicated -- 21 MR. MARKS: A duplicated DVD disk is 22 going to duplicate the CSS encryption. 23 MR. CARSON: And can be played on any 24 legitimate player. PAGE 247 1 MR. MARKS: And can be played on any 2 legitimate player, legitimate licensed CSS player. 3 And not be played on non-licensed players. So, if anyone thought that CSS was had anything to do with preventing "Asian piracy", well, now you know... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 09:03:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA02815 for dvd-discuss-outgoing; Thu, 13 Jul 2000 09:03:25 -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 JAA02812 for ; Thu, 13 Jul 2000 09:03:23 -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:2.21) with ESMTP id JAA04803 for ; Thu, 13 Jul 2000 09:02:14 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA00158; Thu, 13 Jul 2000 09:02:12 -0400 (EDT) Date: Thu, 13 Jul 2000 09:02:12 -0400 (EDT) Message-Id: <200007131302.JAA00158@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Newsgroups: isaac.lists.dvd-discuss In-Reply-To: <8kjl89$50l$1@blowfish.isaac.cs.berkeley.edu> References: <000201bfeb7f$1b28dce0$87ce0593@ia.nsc.com> <8kjl89$50l$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > CSS was never designed to detect illegitimate copies, and I think I can > prove it. It's not that "CSS fails to do what it was intended to do". > CSS was simply never intended to do this in the first place. Acknowledged in Dean Marks' remarks at the Stanford LOC hearing --- he waffles initially, but concedes it as a point of fact. For those who didn't get to the end of my note on the authority model (for those who didn't get to the middle of it, Marks seems to me at least to confirm my notion of what their authority model is), here's how he responded to the question of duplicate DVDs: 6 MR. MARKS: I think it's partially a 7 fair description. I think it is also used -- the 8 fact that the work is encrypted is used to try and 9 guarantee that the user has legitimately -- has 10 legitimate access to the work as well. I mean, I 11 don't think it's completely devoid, the CSS system, 12 of trying to ensure that those people that -- for 13 example, would just simply duplicate the DVD disks - 14 - you know, pirates who would duplicate the DVD 15 disks. 16 And if there were pirate players that 17 were unlicensed, they wouldn't be able to play those 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. 20 MR. CARSON: But a duplicated -- 21 MR. MARKS: A duplicated DVD disk is 22 going to duplicate the CSS encryption. 23 MR. CARSON: And can be played on any 24 legitimate player. PAGE 247 1 MR. MARKS: And can be played on any 2 legitimate player, legitimate licensed CSS player. BTW, if you want to really blow a gasket, try to reconcile what he says about fair use in his initial remarks with what he says about an hypothetical instance of fair use (proposed by Prof. Nesson of the Berkman Center, whose name is consistently spelled "Nessen") near the end of it... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 09:40:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA03123 for dvd-discuss-outgoing; Thu, 13 Jul 2000 09:40:35 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA03120 for ; Thu, 13 Jul 2000 09:40:34 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id JAA28953; Thu, 13 Jul 2000 09:40:19 -0400 Message-ID: <396DC6C3.F4A3E6C5@mit.edu> Date: Thu, 13 Jul 2000 09:40:19 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@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: > BTW, there's plenty of other stuff in Marks' remarks that's > absolutely fascinating, in a train-wreck sort of way; take this > exchange, for instance... > > 3 MR. CARSON: Well, if we get a chance, > 4 in a while. But I sort of would like to stick with > 5 what I was talking about with Mr. Marks. > 6 It strikes me that what we are > 7 describing is perhaps a copying control device in > 8 access control clothing. In other words, you've got > 9 a device that controls access to a work, but not in > 10 the way that, certainly before this rulemaking > 11 began, I thought we were talking about. We were > 12 talking about access control devices. > 13 In other words, I assumed -- naively, > 14 perhaps -- that a technological measure that > 15 controls access to a work, the purpose of that is to > 16 make sure that authorized users and only authorized > 17 users are getting access to the works. So if I paid > 18 the price to the copyright owner otherwise be able > 19 to use that work, then I'm entitled to use it. > 20 And if he somehow gets access to it by > 21 circumventing encryption or passwords, or whatever, > 22 then she's in trouble because she's not an > 23 authorized user. I'm not in trouble because I am. > 24 That's got nothing to do, as far as I can tell, with > 25 what you're talking about. > PAGE 246 > 1 What you're really talking about, I > 2 think, is an access control measure that is designed > 3 to channel someone towards a device which has copy > 4 controls on it. Is that a fair description, or am I > 5 misdescribing it? > 6 MR. MARKS: I think it's partially a > 7 fair description. I think it is also used -- the > 8 fact that the work is encrypted is used to try and > 9 guarantee that the user has legitimately -- has > 10 legitimate access to the work as well. I mean, I > 11 don't think it's completely devoid, the CSS system, > 12 of trying to ensure that those people that -- for > 13 example, would just simply duplicate the DVD disks - > 14 - you know, pirates who would duplicate the DVD > 15 disks. > 16 And if there were pirate players that > 17 were unlicensed, they wouldn't be able to play those > 18 disks because they were encrypted with CSS. That > 19 serves an access control function as well. > 20 MR. CARSON: But a duplicated -- > 21 MR. MARKS: A duplicated DVD disk is > 22 going to duplicate the CSS encryption. > 23 MR. CARSON: And can be played on any > 24 legitimate player. > PAGE 247 > 1 MR. MARKS: And can be played on any > 2 legitimate player, legitimate licensed CSS player. > 3 And not be played on non-licensed players. This exchange is amazing. This is one this I learned: ------------------------------------------- Why is CSS a "trusted protection measure"? CSS implements "access control". How does CSS implement "access control"? Disks that are encrypted using CSS can only be played on licensed players. Why can't someone create an unlicensed player that implements CSS? It is illegal. Why is it illegal? CSS is a "trusted protection measure". ------------------------------------------ How do we destroy this circular reasoning? One stab at this is (going back to 1201(a)(3)(B)): a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. CSS is the technological measure. It cannot simultaneously be the information, process, or treatment that carries the authority of the copyright owner and is required, in the ordinary course of CSS's operation, to gain access to the work. Since all you need to know to be able to decrypt a CSS-encrypted disk is the fact that it was encrypted with CSS and the CSS algorithm itself (i.e. you don't need a title key, player key, bus key, disk key, standing-on-your-head key, etc.) CSS cannot be a technological measure that effectively controls access to a work. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 10:34:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA03997 for dvd-discuss-outgoing; Thu, 13 Jul 2000 10:34:47 -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 KAA03994 for ; Thu, 13 Jul 2000 10:34:46 -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:2.21) with ESMTP id KAA13683 for ; Thu, 13 Jul 2000 10:33:38 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA02023; Thu, 13 Jul 2000 10:33:37 -0400 (EDT) Date: Thu, 13 Jul 2000 10:33:37 -0400 (EDT) Message-Id: <200007131433.KAA02023@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396DC6C3.F4A3E6C5@mit.edu> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> <396DC6C3.F4A3E6C5@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Why is CSS a "trusted protection measure"? > > CSS implements "access control". > > How does CSS implement "access control"? > > Disks that are encrypted using CSS can only be played on licensed players. > > Why can't someone create an unlicensed player that implements CSS? > > It is illegal. > > Why is it illegal? > > CSS is a "trusted protection measure". Yes, *that's* their authority model. And Marks isn't shy about it. (BTW, it doesn't matter a bit whether or not consumers are aware of this authority model --- it binds them regardless. And it doesn't matter whether the player licenses say they carry authority to view content --- authority is needed simply to perform the CSS process, whether or not the viewer has any right to view the movie that it is applied to. So, if Kaplan buys this notion of "authority", neither of those facts has any bearing on the case). > How do we destroy this circular reasoning? > One stab at this is (going back to 1201(a)(3)(B)): > > a technological measure "effectively controls access to a work" > if the measure, in the ordinary course of its operation, requires > the application of information, or a process or a treatment, with > the authority of the copyright owner, to gain access to the work. Which, as I'm sure that Mr. Marks will be happy to tell you, applies perfectly well to the case of CSS --- you require "the authority of the copyright owner", in the form of a CSS license, in order to perform it. That's why I've suggested (as you have) proposing an alternative interpretation of the "authority of the copyright owner" phrase which actually makes sense, covers legitimate access control (such as Divx and PPV cable), gives a reasonable definition for circumvention consistent with the "black box" comments in the legislative record, and doesn't give unlimited, perpetual monopolies over processes to copyright owners. That sort of reading is how most people would read the passage coming to it fresh, BTW --- note that in the segment of transcript I posted, when Mr. Carson of the LOC says: > > 13 ... I assumed -- naively, > > 14 perhaps -- that a technological measure that > > 15 controls access to a work, the purpose of that is to > > 16 make sure that authorized users and only authorized > > 17 users are getting access to the works. So if I paid > > 18 the price to the copyright owner otherwise be able > > 19 to use that work, then I'm entitled to use it. he gets a stammering response from Marks, who tries unconvincingly to project some actual access control functionality into CSS, even though there's no factual support, and he has to step back when called on it. It looks like they're on thin ice here, and they know it: > > 6 MR. MARKS: I think it's partially a > > 7 fair description. I think it is also used -- the > > 8 fact that the work is encrypted is used to try and > > 9 guarantee that the user has legitimately -- has > > 10 legitimate access to the work as well. I mean, I > > 11 don't think it's completely devoid, the CSS system, > > 12 of trying to ensure that those people that -- for > > 13 example, would just simply duplicate the DVD disks - > > 14 - you know, pirates who would duplicate the DVD > > 15 disks. > > 16 And if there were pirate players that > > 17 were unlicensed, they wouldn't be able to play those > > 18 disks because they were encrypted with CSS. That > > 19 serves an access control function as well. > > 20 MR. CARSON: But a duplicated -- > > 21 MR. MARKS: A duplicated DVD disk is > > 22 going to duplicate the CSS encryption. > > 23 MR. CARSON: And can be played on any > > 24 legitimate player. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 11:09:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04313 for dvd-discuss-outgoing; Thu, 13 Jul 2000 11:09:53 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04310 for ; Thu, 13 Jul 2000 11:09:52 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id LAA29323; Thu, 13 Jul 2000 11:09:37 -0400 Message-ID: <396DDBB0.9EDC64AB@mit.edu> Date: Thu, 13 Jul 2000 11:09:36 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> <396DC6C3.F4A3E6C5@mit.edu> <200007131433.KAA02023@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: > > Ravi Nanavati writes: > > Why is CSS a "trusted protection measure"? > > > > CSS implements "access control". > > > > How does CSS implement "access control"? > > > > Disks that are encrypted using CSS can only be played on licensed players. > > > > Why can't someone create an unlicensed player that implements CSS? > > > > It is illegal. > > > > Why is it illegal? > > > > CSS is a "trusted protection measure". > > Yes, *that's* their authority model. And Marks isn't shy about it. > (BTW, it doesn't matter a bit whether or not consumers are aware of > this authority model --- it binds them regardless. And it doesn't > matter whether the player licenses say they carry authority to view > content --- authority is needed simply to perform the CSS process, > whether or not the viewer has any right to view the movie that it is > applied to. So, if Kaplan buys this notion of "authority", neither of > those facts has any bearing on the case). If Kaplan buys the deranged authority model, which seems disturbingly likely at this point, then we have to move to an antitrust argument. Marks admitted that the purpose of CSS is to control the player market. 3 MR. CARSON: Well, if we get a chance, ... [text omitted] ... 1 What you're really talking about, I 2 think, is an access control measure that is designed 3 to channel someone towards a device which has copy 4 controls on it. Is that a fair description, or am I 5 misdescribing it? 6 MR. MARKS: I think it's partially a 7 fair description. I think it is also used -- the 8 fact that the work is encrypted is used to try and 9 guarantee that the user has legitimately -- has 10 legitimate access to the work as well. I mean, I 11 don't think it's completely devoid, the CSS system, 12 of trying to ensure that those people that -- for 13 example, would just simply duplicate the DVD disks - 14 - you know, pirates who would duplicate the DVD 15 disks. 16 And if there were pirate players that 17 were unlicensed, they wouldn't be able to play those 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. Plaintiffs are leveraging their copyrights to control competition in the player market (to stifle the development of players they don't like). They're not supposed to do that. Unfortunately, I suspect dotting every 'i' and crossing every 't' will be difficult in an antitrust argument will be difficult. Too bad David Boies is busy trying to save Napster... - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 11:13:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04403 for dvd-discuss-outgoing; Thu, 13 Jul 2000 11:13:07 -0400 Received: from server1.cluebot.com (server1.cluebot.com [216.110.36.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA04400 for ; Thu, 13 Jul 2000 11:13:05 -0400 Received: (from declan@localhost) by server1.cluebot.com (8.9.3/8.9.3) id KAA04930 for dvd-discuss@eon.law.harvard.edu; Thu, 13 Jul 2000 10:24:12 -0500 Date: Thu, 13 Jul 2000 10:24:12 -0500 From: Declan McCullagh To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Timing question (was: Amicus trial brief outline & RAS) Message-ID: <20000713102412.A4129@server1.cluebot.com> References: <20000712134349.15254.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.2i In-Reply-To: <20000712134349.15254.qmail@hotmail.com>; from harkness99@hotmail.com on Wed, Jul 12, 2000 at 09:43:49AM -0400 X-News-Site: http://www.wired.com/ X-URL: http://www.mccullagh.org/ Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's a dumb question: The trial begins Monday. Isn't it a little late to start working on a brief that would be submitted by, well, Monday? Or do you mean to submit this after the trial is over but before the judge has ruled? -Declan On Wed, Jul 12, 2000 at 09:43:49AM -0400, Jace Cooke wrote: > First to answer this: > > >2. What unconstitutional form of IP are you referring to? > > I think the outline refers to intellectual property that is given the > benefits of patents, copyrights and trade secrets, but with none of their > respective drawbacks. > > Secondly i agree with sam in saying that the amicus should be condensed, and > his suggestion of an authority focus is also quite a good idea. > > Lastly, (OT) i was reading a wired article yesterday about MP3 honchos > squaring off down here in d.c. At the end they mentioned Orrin Hatch asking > questions of the RIAA prez, who was seemingly less than enthused by his line > of questioning. > > >From Wired: > Orrin Hatch said that if record companies and music publishers don't > reasonably license their music and make it available in various file > formats, they would consider legislation to force the companies to license > their music to all comers. > > Hatch asked [Hillary] Rosen if several hypothetical situations, such as > making an audiocassette of a CD to give to a spouse, constituted fair use. > Refusing to answer, she replied that Hatch was "leading me down the Napster > path." > > I find this VERY interesting because our beloved DMCA was originally > introduced by none other than Sen. Hatch. If it can be shown that the > senator indeed is pro fair-use/consumer rights (which seems to be the case), > then an exstensible argument might be made that Congress in fact did not > intend for 1201 to award absolute authoritarian power to MPAA in controlling > its digital content. > Not really a defense, but a supportive thought... > > I think this amicus is going to be quite a compelling peice of literature. > > --- Jace Cooke > > uhhh no cool sig, website, or expert credentials > just a curious (and often confused) > 18 year old IP law clerk in d.c. > ________________________________________________________________________ > Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 11:33:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA04479 for dvd-discuss-outgoing; Thu, 13 Jul 2000 11:33:27 -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 LAA04476 for ; Thu, 13 Jul 2000 11:33:26 -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:2.21) with ESMTP id LAA22687 for ; Thu, 13 Jul 2000 11:32:18 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA23370; Thu, 13 Jul 2000 11:32:17 -0400 (EDT) Date: Thu, 13 Jul 2000 11:32:17 -0400 (EDT) Message-Id: <200007131532.LAA23370@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396DDBB0.9EDC64AB@mit.edu> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> <396DC6C3.F4A3E6C5@mit.edu> <200007131433.KAA02023@soggy-fibers.ai.mit.edu> <396DDBB0.9EDC64AB@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Plaintiffs are leveraging their copyrights to control > competition in the player market (to stifle the > development of players they don't like). They're not > supposed to do that. Actually, I'm not at all sure they're trying to control competition per se --- CSS licenses are available at a relatively nominal cost to anyone who will agree to their terms, and they are doing nothing to inhibit competition among their licensees. The catch, of course, is "anyone who will agree to their terms" --- but since there is a great deal of demonstrable competition among licensed player manufacturers, which include many if not most major consumer electronics manufacturers, they could still blow an awful lot of smoke against a case like this. So I'd be very careful with an argument like this; if he's already written our side off as deadbeats playing with semantics, we won't do much to undo that impression by appearing to deny that Sony is competing with Phillips. (BTW, I do think the MPAA is, in effect, trying to undo U.S. v. Paramount, by arranging control of how their content will be viewed right down to the end of the distribution chain --- but they've chosen a way to do it which does not take the outward form of a cartel). rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:02:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04673 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:02:41 -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 MAA04670 for ; Thu, 13 Jul 2000 12:02:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CKC4>; Thu, 13 Jul 2000 09:01:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CDC@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "authority" Date: Thu, 13 Jul 2000 09:01:36 -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 propose another model ... one that may not even have been considered yet, but one that most accurately brings consideration of today's techonlogies into line w/ traditional copyright. Consider this: the ciphertext is the _medium_ into which the work has been fixed. This means that the protected work is still "The Matrix" or "The Bradys Take Manhattan" or whatever would normally (by a Reasonable Man) be considered to be "the work". So you can't get the work from the medium without the appropriate tool. In the current case the tool is the decryption code. Many works in the past have required decoding mechanisms of some sort, although they have tended to be hardware in nature. Take all that music that was fixed into those big black plastic disks ... you couldn't access the work with your fingernail, you needed a record player. Is this really different in concept than what we've got today IFF we consider that ciphertext is medium rathern than a protected work in and of itself? We do end up w/ the odd case of a medium itself fixed into a medium ... but VHS tape (a medium onto which the movie has been fixed) is itself fixed into a secondary medium (the black plastic cartridges) so even the nested nature of media is not that unusal. How about it ... think we can be daring enough to propose a new model to clarify the application of existing laws to new technology? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Ron Gustavson [mailto:rongus@tiac.net] ... > > I'm thinking that the ciphertext == the protected work and > any decryptions are > translations--but to be protected, there must be some public > proof that they are > truly derived from the original ciphertext. Otherwise, given > the right program, > anyone could claim ownership of anything > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:08:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04753 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:08:12 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA04750 for ; Thu, 13 Jul 2000 12:08:11 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id MAA29513; Thu, 13 Jul 2000 12:07:57 -0400 Message-ID: <396DE95D.AE0D6D20@mit.edu> Date: Thu, 13 Jul 2000 12:07:57 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> <396DC6C3.F4A3E6C5@mit.edu> <200007131433.KAA02023@soggy-fibers.ai.mit.edu> <396DDBB0.9EDC64AB@mit.edu> <200007131532.LAA23370@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: > > Ravi Nanavati writes: > > Plaintiffs are leveraging their copyrights to control > > competition in the player market (to stifle the > > development of players they don't like). They're not > > supposed to do that. > > Actually, I'm not at all sure they're trying to control competition > per se --- CSS licenses are available at a relatively nominal cost to > anyone who will agree to their terms, and they are doing nothing to > inhibit competition among their licensees. > > The catch, of course, is "anyone who will agree to their terms" --- > but since there is a great deal of demonstrable competition among > licensed player manufacturers, which include many if not most major > consumer electronics manufacturers, they could still blow an awful lot > of smoke against a case like this. So I'd be very careful with an > argument like this; if he's already written our side off as deadbeats > playing with semantics, we won't do much to undo that impression by > appearing to deny that Sony is competing with Phillips. > > (BTW, I do think the MPAA is, in effect, trying to undo > U.S. v. Paramount, by arranging control of how their content will be > viewed right down to the end of the distribution chain --- but they've > chosen a way to do it which does not take the outward form of a > cartel). > > rst This is the dilemma of antitrust. No one _ever_ says they want to restrain competition (not even Microsoft). What they do is set up a box in which competition can occur. And then the question is whether or not the government should bust open the box for the people left on the outside. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:12:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA04863 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:12:04 -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 MAA04860 for ; Thu, 13 Jul 2000 12:12:03 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CKDC>; Thu, 13 Jul 2000 09:11:01 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CDD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline 1 Date: Thu, 13 Jul 2000 09:11:00 -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 Trade secrets are protected from theft (i.e. industrial espionage), but not reverse engineering. If they could show that somebody lifted computer (or physical) files from the DVDCCA and -stole- the CSS algorithm ... that would be prosecutable. However, trade secrets are -not- protected from independant reinvention or reverse engineering. To get that sort of protection you must obtain a patent. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Consilgere@cs.com [mailto:Consilgere@cs.com] > Sent: Wednesday, July 12, 2000 5:40 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Amicus trial brief outline 1 > > > Just because Junger dealt with encryption and this case does > doesn't provide > the parallel. If DeCSS was a trade secret, there's a whole > new ball game. > If I've read correctly, Junger used publically available > algorithms or > something like that. Trade secrets are protected under the > law. It doesn't > make the DMCA good law, but maybe its better to let the issue > lie dormant > than to raise it with a large hole in it. > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:17:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05225 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:17:08 -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 MAA05177 for ; Thu, 13 Jul 2000 12:17:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CKDM>; Thu, 13 Jul 2000 09:16:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CDE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 09:16:03 -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 By the logic herein, simply recording something onto the laser substrate is a technological protection measure ... I mean, you can't read it by looking at it with your eyes, you need a technological process (reflecting laser light to be read by a sensor, to be decoded and formatted into a video signal). Whether the data on the DVD is "plaintext" or "encrypted" makes no difference at that point -- the fact that it has been recorded AT ALL is just as much of a TPM as the additional encryption might be. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Thursday, July 13, 2000 4:21 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS > > > Chris Moseng writes: > > > I) Authority and authority models > > > A) Plaintiff's model, as outlined above > > > > I will restate my position that the plaintiff's authority model is > > unknown. You have a theory, I have a theory, they're a little > > different--and that's something that should be brought to light. > > Well, the plaintiffs' authorization theory is a little thin in the > depositions, where I wasted some time looking for it, because they've > buried a lot of relevant information under attorney-client privilege, > and most of the remaining discussion of it seems to have been marked > confidential (judging by some questions whose answers got whited out). > But there's a fair bit of information MPAA representative, and > Time-Warner lawyer Dean Marks' comments in the Stanford hearing, to > which Wendy has referred us. Such as: > > 16 MR. CARSON: Are [DVD buyers] authorized to view > 17 [their DVD] on any machine they can find, that they can make > 18 to view it? > 19 MR. MARKS: No, no. They're authorized > 20 to view it on a licensed device. If someone were to > 21 buy a VHS cassette, and they didn't have a VHS > 22 player, are they authorized to disassemble the > 23 videocassette, reproduce the film in there in 35- > 24 millimeter print and play it on their movie camera? > 25 I don't think so. > > [RIAA v. Diamond might lead one to a different > conclusion, but we go on...] > > PAGE 249 > 1 MR. CARSON: Okay. But, first of all, > 2 there's no contractual privity between the purchaser > 3 of that DVD and Time Warner, I assume. There's no > 4 shrink-wrapped license. You know, you don't sign a > 5 license saying, "I agree only to play this on an > 6 authorized player," when you purchase the DVD. > 7 MR. MARKS: That's correct. And neither > 8 is there a shrink-wrapped license when you buy a VHS > 9 cassette that's in NTSC format, and you only have a > 10 PAL player. > > So purchasers of a DVD are not entitled to view their DVD "on any > machine they can ... make", but *only* on "a licensed device". But > that is not due to any contractual obligation they personally have > entered into. > > So, in this passage, Mr. Marks is directly asserting that the general > public does not have a right to make a device that will play > CSS-format video, because CSS is a "technical protection measure" > which is licensed by the MPAA, or their agents. In fact, he uses the > phrase "pirate player" elsewhere in the transcript. In other words, > as I've said earlier, more or less: > > 1) "It's a technical protection measure" > 2) "We license it, so licensed reading-of-CSS is use > authorized by us" > 3) "Any unlicensed reading-of-CSS is unauthorized, and therefore > circumvention" > > So, what's a technical protection measure, that they get to restrict > it like this? Well, it has something to do with the use of > encryption: > > 9 [Manufacturers] said, "But if that data is > 10 scrambled, if it is encrypted, and we want our > 11 machines, our computers to make use of that data, > 12 then we have a choice. We can either sign up and > 13 get a license to decrypt that data and follow the > 14 rules and conditions that are in that license. Or > 15 our machines will simply pass along the encrypted > 16 data, keeping it in encrypted form. We agree that > 17 our devices and machines should not be permitted to > 18 simply descramble and hack through and encryption > 19 system without any sort of authorization or > 20 permission." > 21 Having reached that understanding, that > 22 is the basis upon which we built the CSS system. > 23 The CSS system, called Content Scramble System, > 24 involves initially scrambling the content on the DVD > 25 disk. So it is encrypted, even though that's > 26 completely transparent to the user. > PAGE 242 > 1 Because when you put your DVD into your > 2 DVD player, or your DVD computer, in most > 3 circumstances you just press "Play" and the disk > 4 plays. So you don't even necessarily realize that > 5 it's encrypted, but the disks are encrypted. > > But is what he's describing really encryption? Here's the Diffie and > Landau definition, once again: > > We shall describe cryptography for the moment only by what > it does: a > transformation of a message that makes the message > incomprehensible to > anyone who is not in posession of secret information that > is needed to > restore the message to its normal *plaintext* or *cleartext* form. > The secret information is called the *key*, and its function is very > similar to the function of a door key in a lock: it unlocks the > message so that the recipient can read it. > > But the secret, in this case, is a single transformation that will get > you MPEG video off *any* DVD --- it isn't specific to the work in > question; "you just press 'Play' and the disk plays". (It certainly > doesn't have to do with the efficacy of the collection of LFSRs in a > CSS spec as a cipher used for keeping data secret --- for that, it's > terrible, and the MPAA knew that at the time the thing was designed). > The specification of the single CSS process is itself the "key" that > "unlocks" *all* DVDs. > > So, it certainly looks to me like the upshot here is the same as in my > colloquy with Jim Taylor --- on the MPAA's reading of the law, *any* > trade-secret process which is necessary to gain access to their works > can be described as "encryption", by the MPAA's standard, and then, on > their reading, 1201(a) gives them unlimited authority to vet > implementations of that process by anyone. > > Reconciling this with the bald statement in the conference committee's > report that > > 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. > > is left, for now, as an exercise for the interested reader. , > > At any rate, that's why I think that this is their model of authority; > it's also probably what they're selling to Kaplan, who seems to be > buying it. So, if we want to address the topic ourselves, this is > what we're up against. > > BTW, there's plenty of other stuff in Marks' remarks that's > absolutely fascinating, in a train-wreck sort of way; take this > exchange, for instance... > > 3 MR. CARSON: Well, if we get a chance, > 4 in a while. But I sort of would like to stick with > 5 what I was talking about with Mr. Marks. > 6 It strikes me that what we are > 7 describing is perhaps a copying control device in > 8 access control clothing. In other words, you've got > 9 a device that controls access to a work, but not in > 10 the way that, certainly before this rulemaking > 11 began, I thought we were talking about. We were > 12 talking about access control devices. > 13 In other words, I assumed -- naively, > 14 perhaps -- that a technological measure that > 15 controls access to a work, the purpose of that is to > 16 make sure that authorized users and only authorized > 17 users are getting access to the works. So if I paid > 18 the price to the copyright owner otherwise be able > 19 to use that work, then I'm entitled to use it. > 20 And if he somehow gets access to it by > 21 circumventing encryption or passwords, or whatever, > 22 then she's in trouble because she's not an > 23 authorized user. I'm not in trouble because I am. > 24 That's got nothing to do, as far as I can tell, with > 25 what you're talking about. > PAGE 246 > 1 What you're really talking about, I > 2 think, is an access control measure that is designed > 3 to channel someone towards a device which has copy > 4 controls on it. Is that a fair description, or am I > 5 misdescribing it? > 6 MR. MARKS: I think it's partially a > 7 fair description. I think it is also used -- the > 8 fact that the work is encrypted is used to try and > 9 guarantee that the user has legitimately -- has > 10 legitimate access to the work as well. I mean, I > 11 don't think it's completely devoid, the CSS system, > 12 of trying to ensure that those people that -- for > 13 example, would just simply duplicate the DVD disks - > 14 - you know, pirates who would duplicate the DVD > 15 disks. > 16 And if there were pirate players that > 17 were unlicensed, they wouldn't be able to play those > 18 disks because they were encrypted with CSS. That > 19 serves an access control function as well. > 20 MR. CARSON: But a duplicated -- > 21 MR. MARKS: A duplicated DVD disk is > 22 going to duplicate the CSS encryption. > 23 MR. CARSON: And can be played on any > 24 legitimate player. > PAGE 247 > 1 MR. MARKS: And can be played on any > 2 legitimate player, legitimate licensed CSS player. > 3 And not be played on non-licensed players. > > So, if anyone thought that CSS was had anything to do with preventing > "Asian piracy", well, now you know... > > rst > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:23:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05378 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:23:06 -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 MAA05375 for ; Thu, 13 Jul 2000 12:23:04 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CK1A>; Thu, 13 Jul 2000 09:22:02 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CDF@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 09:22:02 -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 You are _authorized_ to listen to a record if you buy a record player. You are _authorized_ to listen to a cassette if you buy a cassette player. You are _authorized_ to play a VHS tape if you buy a VHS tape player. The only thing different about these cases was that there was no central authority with which you had to enter into a license agreement in order to build a record/cassette/VHS player -- anybody could make one. The existance of such a central authority with the ability to license (hence restrict) the creation of DVD players smells like it needs an anti-trust investigation. Unless there is another difference: that the statements above are false. If they are false, then the statement "You are _authorized_ to watch a DVD if you buy a DVD player" is equally false, and anybody with the technological capability to create a DVD player may do so. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Thursday, July 13, 2000 7:34 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS > > > Ravi Nanavati writes: > > Why is CSS a "trusted protection measure"? > > > > CSS implements "access control". > > > > How does CSS implement "access control"? > > > > Disks that are encrypted using CSS can only be played on > licensed players. > > > > Why can't someone create an unlicensed player that implements CSS? > > > > It is illegal. > > > > Why is it illegal? > > > > CSS is a "trusted protection measure". > > Yes, *that's* their authority model. And Marks isn't shy about it. > (BTW, it doesn't matter a bit whether or not consumers are aware of > this authority model --- it binds them regardless. And it doesn't > matter whether the player licenses say they carry authority to view > content --- authority is needed simply to perform the CSS process, > whether or not the viewer has any right to view the movie that it is > applied to. So, if Kaplan buys this notion of "authority", neither of > those facts has any bearing on the case). > > > How do we destroy this circular reasoning? > > One stab at this is (going back to 1201(a)(3)(B)): > > > > a technological measure "effectively controls access to a work" > > if the measure, in the ordinary course of its operation, requires > > the application of information, or a process or a treatment, with > > the authority of the copyright owner, to gain access to the work. > > Which, as I'm sure that Mr. Marks will be happy to tell you, applies > perfectly well to the case of CSS --- you require "the authority of > the copyright owner", in the form of a CSS license, in order to > perform it. > > That's why I've suggested (as you have) proposing an alternative > interpretation of the "authority of the copyright owner" phrase which > actually makes sense, covers legitimate access control (such as Divx > and PPV cable), gives a reasonable definition for circumvention > consistent with the "black box" comments in the legislative record, > and doesn't give unlimited, perpetual monopolies over processes to > copyright owners. > > That sort of reading is how most people would read the passage coming > to it fresh, BTW --- note that in the segment of transcript I posted, > when Mr. Carson of the LOC says: > > > > 13 ... I assumed -- naively, > > > 14 perhaps -- that a technological measure that > > > 15 controls access to a work, the purpose of that is to > > > 16 make sure that authorized users and only authorized > > > 17 users are getting access to the works. So if I paid > > > 18 the price to the copyright owner otherwise be able > > > 19 to use that work, then I'm entitled to use it. > > he gets a stammering response from Marks, who tries unconvincingly to > project some actual access control functionality into CSS, even though > there's no factual support, and he has to step back when called on it. > It looks like they're on thin ice here, and they know it: > > > > 6 MR. MARKS: I think it's partially a > > > 7 fair description. I think it is also used -- the > > > 8 fact that the work is encrypted is used to try and > > > 9 guarantee that the user has legitimately -- has > > > 10 legitimate access to the work as well. I mean, I > > > 11 don't think it's completely devoid, the CSS system, > > > 12 of trying to ensure that those people that -- for > > > 13 example, would just simply duplicate the DVD disks - > > > 14 - you know, pirates who would duplicate the DVD > > > 15 disks. > > > 16 And if there were pirate players that > > > 17 were unlicensed, they wouldn't be able to play those > > > 18 disks because they were encrypted with CSS. That > > > 19 serves an access control function as well. > > > 20 MR. CARSON: But a duplicated -- > > > 21 MR. MARKS: A duplicated DVD disk is > > > 22 going to duplicate the CSS encryption. > > > 23 MR. CARSON: And can be played on any > > > 24 legitimate player. > > rst > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:29:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05613 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:29:40 -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 MAA05610 for ; Thu, 13 Jul 2000 12:29:36 -0400 Message-ID: <20000713162756.9011.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 13 Jul 2000 09:27:56 PDT Date: Thu, 13 Jul 2000 09:27:56 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline 1 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 --- Consilgere@cs.com wrote: > Just because Junger dealt with encryption and this case does doesn't > provide the parallel. If DeCSS was a trade secret, there's a > whole new ball game. If I've read correctly, Junger used publically > available algorithms or something like that. Trade secrets are > protected under the law. It doesn't make the DMCA good law, but > maybe its better to let the issue lie dormant than to raise it with > a large hole in it. Well, there is no trade secret cause of action in the NY case, nor could there be because any trade secret in CSS technology would belong to the DVD-CCA, who is not a party there. This is the issue of the CA case, and I'm sure that the recently released brief for the defense properly disposes of it (I haven't read it yet). In order for 2600 to be guilty of a trade secret violation they would have to have known that DeCSS misappropriated trade secrets. Reverse engineering of trade secrets is explicitly allowed under CA law, and this cannot altered by contract under Norwegian law. Moreover, since the true origin of DeCSS isn't even known, there is no evidence that the author actually accepted the clickwrap licence contract. It's also unclear that a no-reverse-engineering clause would be upheld in such a contract, even under CA law. All of these factors certainly cloud the issue sufficiently to say that 2600 has not knowingly passed on a misappropriated trade secret. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 12:35:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05719 for dvd-discuss-outgoing; Thu, 13 Jul 2000 12:35:08 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA05716 for ; Thu, 13 Jul 2000 12:35:04 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA26387 for ; Thu, 13 Jul 2000 11:33:38 -0500 Message-ID: <396DEF27.9281534D@mninter.net> Date: Thu, 13 Jul 2000 11:32:39 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@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 > But there's a fair bit of information MPAA representative, and > Time-Warner lawyer Dean Marks' comments in the Stanford hearing, to > which Wendy has referred us. Such as: Mostly, I would assert that these are not in the court's record. The court doesn't know about them, and these transcripts are still not attached to every DVD I buy, so DVD owners still aren't made aware of them. That they were danced around in a public hearing certainly does not make them well-defined, which is what I think is necessary. If they are not well-defined they are not actionable. I'll write a few pages using my outline tonight, and if anybody thinks it is getting us anywhere, we might include it. I'll include, for completeness, other ways that the authority model fails. At least there will be something written. I won't be including any legal citations, just argumentation, so someone else will have to chime in with that stuff. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 13:01:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05909 for dvd-discuss-outgoing; Thu, 13 Jul 2000 13:01:24 -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 NAA05906 for ; Thu, 13 Jul 2000 13:01:22 -0400 Message-ID: <20000713165943.11288.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Thu, 13 Jul 2000 09:59:43 PDT Date: Thu, 13 Jul 2000 09:59:43 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Timing question (was: Amicus trial brief outline & RAS) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Declan McCullagh wrote: > Here's a dumb question: > > The trial begins Monday. Isn't it a little late to start working on > a brief that would be submitted by, well, Monday? > > Or do you mean to submit this after the trial is over but before > the judge has ruled? Well, that's a good question. I had assumed that we needed to get the brief in by the end of the trial (say closing arguements). I have no clue how long the trial will take or how long after it's done it will take for the decision. Any lawyers want to speculate on this? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 13:03:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06009 for dvd-discuss-outgoing; Thu, 13 Jul 2000 13:03:25 -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 NAA06006 for ; Thu, 13 Jul 2000 13:03:24 -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:2.21) with ESMTP id NAA07806 for ; Thu, 13 Jul 2000 13:02:16 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA25909; Thu, 13 Jul 2000 13:02:16 -0400 (EDT) Date: Thu, 13 Jul 2000 13:02:16 -0400 (EDT) Message-Id: <200007131702.NAA25909@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CDE@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CDE@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > By the logic herein, simply recording something > onto the laser substrate is a technological protection > measure ... I mean, you can't read it by looking at > it with your eyes, you need a technological process (reflecting > laser light to be read by a sensor, to be decoded and formatted > into a video signal). Whether the data on the DVD > is "plaintext" or "encrypted" makes no difference at > that point -- the fact that it has been recorded AT ALL > is just as much of a TPM as the additional encryption > might be. Well, yeah. But is there anything in Mr. Marks' testimony, or about CSS as a TPM, which keeps us off the slippery slope that bottoms out there? I'm thinking about player keys as one possibility, but so far, I don't think they help much; they complicate the situation, but not in a way that makes it any more sensible. In detail: I said in my argument that there is one process, the CSS process, which will "unlock" any CSS-formatted DVD, and the description of that process is, in effect, the "key" to CSS "authentication"; the problem is then that the description of *any* process (including, as above, the process of simply reading something off a laser substrate) could fulfil the same role. That's actually a technical oversimplification, because of the player keys. It turns out that there are, IIRC, more than 400 distinct processes, *each* of which will "unlock" any CSS-format DVD. So, even though each CSS licensee gets only their own player key (i.e., their own CSS variant), all the player keys provide access to the exact same content, in the ordinary course of operation. What player keys add is an extrajudicial way for the movie studios to punish any player manufacturer that has displeased them, by producing new DVDs on which the manufacturer's *particular* CSS-reading process no longer works. This is documented in Jim Taylor's DVD FAQ, and I've seen reports on this list that it has already happened to the Xing player. Apparently, they think of this as part of revoking the manufacturer's license to perform the CSS process, or something. In any case, it obviously has nothing to do with revoking any particular viewer's access to any given film --- the viewer could always buy another manufacturer's player (and in fact, has to!). They might, in a pinch, try to defend it as revoking the manufacturers' access to their movies, but the manufacturer isn't *viewing* their movies --- the manufacturer's customer is. And if they want to claim that the manufacturer is their agent in presenting the film to the customer, well... that's a pretty close parallel to U.S. v. Paramount. But this revocation mechanism might provide at least as good an antitrust attack than trying to attack their license fee and non-disclosure requirements as anti-competitive per se... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 13:37:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06219 for dvd-discuss-outgoing; Thu, 13 Jul 2000 13:37:57 -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 NAA06216 for ; Thu, 13 Jul 2000 13:37:56 -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:2.21) with ESMTP id NAA13131 for ; Thu, 13 Jul 2000 13:36:48 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA08521; Thu, 13 Jul 2000 13:36:48 -0400 (EDT) Date: Thu, 13 Jul 2000 13:36:48 -0400 (EDT) Message-Id: <200007131736.NAA08521@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396DEF27.9281534D@mninter.net> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> <396DEF27.9281534D@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Mostly, I would assert that these are not in the court's record. The > court doesn't know about them, and these transcripts are still not > attached to every DVD I buy, so DVD owners still aren't made aware of > them. That they were danced around in a public hearing certainly does > not make them well-defined, which is what I think is necessary. If they > are not well-defined they are not actionable. I'm not sure what you mean be "well-defined", but the transcripts are a clear statement of the MPAA's position --- CSS is an access control process, they license it, so any *unlicensed* implementation of CSS is unauthorized. It doesn't matter whether you knew it or not, and in any case, the fact that CSS is a process licensed by the DVDCCA is so widely known that it isn't credible you could try to make a DVD reader without knowing it. But if you'd prefer what's in the court record, note this bit from the transcript of the hearing regarding the preliminary injunction; the speaker is Leon Gold, representing the MPAA, and he appears to be relying on the pseudo-cryptography in CSS in the same way as Mr. Marks at the LOC hearing: Now, under the statute, three conditions need to be satisfied: Are defendants offering, providing, trafficking in this device, and is it designed to circumvent the technological measure that's controlling access to protected copyright work? We think it's all very, very clear. Circumvent means to descramble, and that's what DeCSS does. A technological measure effectively controls the access here to do the protected work and CSS is such a measure and it's designed to control access to our copyrighted works. Because CSS is an encryption technology, you've got to have a software key to open it, so CSS qualifies as an access control measure. And all of the statutory requirements are met, and defendants are clearly violating them. Once again, the argument goes the same way: the "key" is a particular piece of information needed to "unlock" an encrypted message. But what we have here is *one* key that "unlocks" *any* CSS-format DVD --- the key, in effect, is the description of the complete CSS process itself. As acknowledged by Mr. Gold: THE COURT: And the key is what? Is it software? Is it hardware? Is it a combination? MR. GOLD: The key is software. That's what software *is* --- a description of a process, in machine readable form. (The player keys complicate this situation a bit, but as I discussed in a prior note, I don't *think* they change the fundamental nature of it). One last note, BTW --- only the defense team really knows what's in the court record at this point; they did ask questions about authority in some of the depositions, but the answers are, so far, confidential. But I'd be more than surprised if the answers were substantively different from what was seen in either the hearing regarding the injunction, or the LOC hearing... > I'll write a few pages using my outline tonight, and if anybody thinks > it is getting us anywhere, we might include it. I'll include, for > completeness, other ways that the authority model fails. At least there > will be something written. I won't be including any legal citations, > just argumentation, so someone else will have to chime in with that > stuff. I'll be working on mine as well. We may have a good thesis-antithesis thing going here; with luck, a useful synthesis may come out of it. [Hegel. Hegel. Ahhhh-choo. Bless you.] rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 13:44:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06362 for dvd-discuss-outgoing; Thu, 13 Jul 2000 13:44:33 -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 NAA06359 for ; Thu, 13 Jul 2000 13:44:30 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CKKF>; Thu, 13 Jul 2000 10:43:28 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 10:43:25 -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: Thursday, July 13, 2000 10:02 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS > > > Richard Hartman writes: > > By the logic herein, simply recording something > > onto the laser substrate is a technological protection > > measure ... I mean, you can't read it by looking at > > it with your eyes, you need a technological process (reflecting > > laser light to be read by a sensor, to be decoded and formatted > > into a video signal). Whether the data on the DVD > > is "plaintext" or "encrypted" makes no difference at > > that point -- the fact that it has been recorded AT ALL > > is just as much of a TPM as the additional encryption > > might be. > > Well, yeah. But is there anything in Mr. Marks' testimony, or about > CSS as a TPM, which keeps us off the slippery slope that bottoms out > there? I'm kinda thinking that we -want- it to bottom out there: reductio ad absurdum. Show how ridiculous their claim is re. past precedent. They can't even claim that encryption adds anything to the process since formatting the bits read by the laser into a viable video signal is just as much of a decoding/descrambling process as is shuffling those bits around while they are still bits. There is -nothing- in the CSS process that wasn't already present in the previously existing situation (e.g. CDs) that materially changes things, except the issue of manufacturers being required to agree to a set of conditions before being allowed to build a player. THIS SORT OF PROTECTION HAS PREVIOUSLY BEEN THE DOMAIN OF PATENTS. I.e. if you wanted to make something that required the use of a patented process, you must obtain permission from the patent holder and therfore be subject to any conditions they may wish to impose. They are attempting to usurp patent-level protection for trade secrets. Moreover they will be EXCEEDING patent level protection because patents expire! I believe that this is an important point to bring up, as it calls into question the whole patent process. If there is no longer a need to obtain a patent (with their inherent expiration) in order to gain this level of control over the process/invention then what is the point of getting a patent and being required to disclose the process? > > I'm thinking about player keys as one possibility, but so far, I don't > think they help much; they complicate the situation, but not in a way > that makes it any more sensible. In detail: > > I said in my argument that there is one process, the CSS process, > which will "unlock" any CSS-formatted DVD, and the description of that > process is, in effect, the "key" to CSS "authentication"; the problem > is then that the description of *any* process (including, as above, > the process of simply reading something off a laser substrate) could > fulfil the same role. Exactly. > > That's actually a technical oversimplification, because of the player > keys. Which, if they are always, automatically (transparantly) applied turns out to be a no-op -- a difference that makes no difference. In the Divx model, the key may-or-may-not have been applied dependant upon an actual authorization check. With the DVD/CSS model, the process is ALWAYS applied, hence no different than the laser reading bits off the substrate (also always applied). >It turns out that there are, IIRC, more than 400 distinct > processes, *each* of which will "unlock" any CSS-format DVD. So, even > though each CSS licensee gets only their own player key (i.e., their > own CSS variant), all the player keys provide access to the exact same > content, in the ordinary course of operation. > > What player keys add is an extrajudicial way for the movie studios to > punish any player manufacturer that has displeased them, A completely different purpose that that which has been claimed for the process, and one which (as you say) leads down the road of all sorts of nasty implications once it is recognized by the court as the actual purpose of CSS. I think we can help force the recognition of this actual purpose of CSS by making it clear that CSS can in no way fulfill the roll being ascribed to it by the DVDCCA. Showing that it offers no additional protection at the user level than that given by the basic process (reading by laser, encoding into NTSC by processor) and then showing that the only party that can be affected by this is the manufacturer (e.g. Xing), I think we have a one-two combination that would be difficult to refute. But I don't think it is enough to show the impact on the mfgr, we must first show the complete -lack- of difference to the end user as to whether CSS has been employed or not. >by producing > new DVDs on which the manufacturer's *particular* CSS-reading process > no longer works. This is documented in Jim Taylor's DVD FAQ, and I've > seen reports on this list that it has already happened to the Xing > player. Apparently, they think of this as part of revoking the > manufacturer's license to perform the CSS process, or something. In > any case, it obviously has nothing to do with revoking any particular > viewer's access to any given film --- the viewer could always buy > another manufacturer's player (and in fact, has to!). > > They might, in a pinch, try to defend it as revoking the > manufacturers' access to their movies, but the manufacturer isn't > *viewing* their movies --- the manufacturer's customer is. And if > they want to claim that the manufacturer is their agent in presenting > the film to the customer, well... that's a pretty close parallel to > U.S. v. Paramount. > > But this revocation mechanism might provide at least as good an > antitrust attack than trying to attack their license fee and > non-disclosure requirements as anti-competitive per se... > > rst > -- -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 Jul 13 14:05:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06557 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:05:23 -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 OAA06554 for ; Thu, 13 Jul 2000 14:05:22 -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:2.21) with ESMTP id OAA17440 for ; Thu, 13 Jul 2000 14:04:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA18629; Thu, 13 Jul 2000 14:04:13 -0400 (EDT) Date: Thu, 13 Jul 2000 14:04:13 -0400 (EDT) Message-Id: <200007131804.OAA18629@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@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'm kinda thinking that we -want- it to bottom out there: > reductio ad absurdum. Show how ridiculous their claim is > re. past precedent. Exactly the game I've been playing since Sunday; haven't you noticed? ;-) Time to get started on that darft, I guess... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 14:24:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06724 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:24:28 -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 OAA06721 for ; Thu, 13 Jul 2000 14:24:26 -0400 Received: from ip173.bedford3.ma.pub-ip.psi.net ([38.32.11.173]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Cndm-0004om-00 for dvd-discuss@eon.law.harvard.edu; Thu, 13 Jul 2000 14:23:18 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 14:17:12 -0400 Message-ID: References: <5A8391CA2D9ED311AFAA080009D982B10B1CDF@mail2.onetouch.com> In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CDF@mail2.onetouch.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 OAA06722 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000 09:22:02 -0700, Richard Hartman wrote: >You are _authorized_ to listen to a record if you buy a record player. >You are _authorized_ to listen to a cassette if you buy a cassette player. >You are _authorized_ to play a VHS tape if you buy a VHS tape player. add: You are _authorized_ to run your finger in the groove of your irreplaceable 45 of Stormy Weather by the Five Sharps. You are _authorized_ to snip your VHS tape of Repulsion into 18" clippings and reassemble with Scotch tape. You are _authorized_ to build an MP3/CD player from parts found at the dump. >The only thing different about these cases was that there was >no central authority with which you had to enter into a license >agreement in order to build a record/cassette/VHS player -- anybody >could make one. The existance of such a central authority with >the ability to license (hence restrict) the creation of DVD players >smells like it needs an anti-trust investigation. > >Unless there is another difference: that the statements above >are false. If they are false, then the statement "You are >_authorized_ to watch a DVD if you buy a DVD player" is equally >false, and anybody with the technological capability to create >a DVD player may do so. I think you've got it--we don't need no stinking badges! DVDCCA/MPAA authorization has to be seen for what it is-- a Ponzi scheme with no more legitimacy than a three-card monte game in Times Square. Their hubris is to enroll our government as enforcer. ps. I authorize you all in advance! __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 14:28:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06816 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:28:46 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA06813 for ; Thu, 13 Jul 2000 14:28:45 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6DIRbA20147 for ; Thu, 13 Jul 2000 13:27:37 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id NAA04035 for ; Thu, 13 Jul 2000 13:27:36 -0500 (CDT) Date: Thu, 13 Jul 2000 13:27:35 -0500 (CDT) From: sam th To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CDF@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 Thu, 13 Jul 2000, Richard Hartman wrote: > > You are _authorized_ to listen to a record if you buy a record player. > You are _authorized_ to listen to a cassette if you buy a cassette player. > You are _authorized_ to play a VHS tape if you buy a VHS tape player. I would think that merely buying the record authorizes you to listen to it. There is nothing legally preventing me from building my own record (or VHS, or CD, ...) player. Right? sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 14:34:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06862 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:34:27 -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 OAA06859 for ; Thu, 13 Jul 2000 14:34:22 -0400 Message-ID: <20000713183240.6275.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Thu, 13 Jul 2000 11:32:40 PDT Date: Thu, 13 Jul 2000 11:32:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > THE COURT: And the key is what? Is it software? Is it hardware? Is > it a combination? > MR. GOLD: The key is software. I had fogotten about this quote. It actually proves out the 1201(f)(1) reverse engineering claim. The title key which encrypts the actual .vob files is software, so "identifying and analyzing those elements of the program that are necessary to achieve interoperability" allows access to the title key. Then the "first half" of (f)(2) applies and (f)(3) follows, independently of the "second half" of (f)(2) argument. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 14:43:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA06933 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:43:17 -0400 Received: from thoughtpolice.bigbrother.net (patchi.organic.com [208.241.222.3] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA06930 for ; Thu, 13 Jul 2000 14:43:14 -0400 Received: from bigbrother.net (IDENT:sterno@localhost [127.0.0.1]) by thoughtpolice.bigbrother.net (8.9.3/8.9.3) with ESMTP id NAA04235; Thu, 13 Jul 2000 13:34:17 -0500 Message-ID: <396E0BA4.BC35097@bigbrother.net> Date: Thu, 13 Jul 2000 13:34:12 -0500 From: Steve Stearns X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS 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 sam th wrote: > On Thu, 13 Jul 2000, Richard Hartman wrote: > > You are _authorized_ to listen to a record if you buy a record player. > > You are _authorized_ to listen to a cassette if you buy a cassette player. > > You are _authorized_ to play a VHS tape if you buy a VHS tape player. > I would think that merely buying the record authorizes you to listen to > it. There is nothing legally preventing me from building my own record > (or VHS, or CD, ...) player. Right? Exactly! The authority to view VHS tapes, audio casettes, and records are all given at the point where you hand over money for your purchase. Now suddenly the MPAA wants to say that the same principle doesn't apply to DVD's. Suddenly they are saying that the purchase of the player is what conveys authority. If that is true, then by logical extension, if you can build a VCR, you are legally permitted to watch and pirate tapes til your heart's content. In the case of DVD's you can't do this because you can't legally build a DVD player because you must license the technology from somebody who won't license it to you unless you meet certain restrictions. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 14:45:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA07034 for dvd-discuss-outgoing; Thu, 13 Jul 2000 14:45:20 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA07031 for ; Thu, 13 Jul 2000 14:45:16 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PPGG>; Thu, 13 Jul 2000 14:48:37 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E3E@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 14:48:36 -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 Wait, I'm confused...does Mr. Gold mean the title key, or is the key the machine code that performs the transformation? In other words, can the key have a functional component? I know, this is very different from a cryptographic definition of key. -----Original Message----- From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] Sent: Thursday, July 13, 2000 2:33 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS --- "Robert S. Thau" wrote: > THE COURT: And the key is what? Is it software? Is it hardware? Is > it a combination? > MR. GOLD: The key is software. I had fogotten about this quote. It actually proves out the 1201(f)(1) reverse engineering claim. The title key which encrypts the actual .vob files is software, so "identifying and analyzing those elements of the program that are necessary to achieve interoperability" allows access to the title key. Then the "first half" of (f)(2) applies and (f)(3) follows, independently of the "second half" of (f)(2) argument. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 15:31:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07597 for dvd-discuss-outgoing; Thu, 13 Jul 2000 15:31:22 -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 PAA07594 for ; Thu, 13 Jul 2000 15:31:17 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CKS8>; Thu, 13 Jul 2000 12:30:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CE7@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 12:30:12 -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 > -----Original Message----- > From: sam th [mailto:sam@uchicago.edu] > Sent: Thursday, July 13, 2000 11:28 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS > > > On Thu, 13 Jul 2000, Richard Hartman wrote: > > > > > You are _authorized_ to listen to a record if you buy a > record player. > > You are _authorized_ to listen to a cassette if you buy a > cassette player. > > You are _authorized_ to play a VHS tape if you buy a VHS > tape player. > > I would think that merely buying the record authorizes you to > listen to > it. There is nothing legally preventing me from building my > own record > (or VHS, or CD, ...) player. Right? > That is my point. There is nothing legally preventing you from building your own DVD player either, given that reverse engineering a trade secret is legal and that CSS has no more (or less!) status as a technological protection measure than the act of bouncing a laser beam off the physical medium. -- -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 Jul 13 15:41:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07831 for dvd-discuss-outgoing; Thu, 13 Jul 2000 15:41:18 -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 PAA07828 for ; Thu, 13 Jul 2000 15:41:16 -0400 Message-ID: <20000713193936.10674.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Thu, 13 Jul 2000 12:39:36 PDT Date: Thu, 13 Jul 2000 12:39:36 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Amicus trial brief outline 2 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 incorporated the feedback and tried to consolidate it down to three sections, hopefuly to make it shorter. I also added detail, based on the contributions I recieved and my own recollection of what we've discussed on the list. _______________________________ I) DeCSS does not violate Section 1201 A) No "circumvention" - authorization models & first sale 1) Review of statue's requirement & definition for "circumvention" a) 1201(a)(2)(A,B,C) require "cirucmvention" b) 1201(a)(3)(A) defines "circumvention" c) difference between "circumvention" and "descrambling" d) Defense has never agreed that DeCSS "circumvents" 2) Plaintiffs (unstated) model of authorization 3) Defendants model of authorization 4) Factual problems with Plaintiffs model a) No evidence that this actually WAS the model b) Not communicated to consumer, no contractual assent c) Contradicted by player licences d) Plain meaning of "home viewing only" copyright notice 5) Statutory & Legislative history problems with Plaintiffs model a) Creates "tying" of works to players b) Mis-use of copyright or mis-use of paracopyright c) Violates 17 USC 102(b) by protecting idea & method of operation d) doesn't fit under "first sale of key in lieu of work" intent 6) Constitutional problems with Plaintiff's model a) Advances non-existent super-IP: patent-like but better b) Grants idea protections to authors without disclosure c) Violates "limited times" B) Plaintiffs confuse 1201(a)(2) with (b)(1) 1) Choose between "prophylactic" or "infringement is irrelevent" 2) Fair use protected by 1201(c)(1,4) => no overlap btw (a) & (b) 3) Statuory differences between (a) & (b) show no overlap a) "authority" vs "exercise of a right" of the copyright owner b) Definition of "access" c) Use of word "process" in (a)(3)(B) => 1201(a) not prophylactic d) Leg. history supports (a) for "first sale of key" model 4) CSS not "access control", but rather "use control" C) Fails each of (a)(2)(A,B,C) D) DeCSS qualifies for RE exception 1) Via (f)(1) & "first half" of (f)(2): keys are "software" 2) Via "second half" of 1201(f)(2) by enabling interoperability 3) Intent of 2600 clearly supports granting 1201(f) 4) Denial of RE exception here protects ideas: unconstitutional II) Fair Use, First Amendment and Limits of 1201(a) A) Statue & Legislative history supports "fair access" fair uses 1) Statute grants fair access determination to Copyright Office 2) Legislators very clear on preserving fair use 3) Use of word "affect" in 1201(c)(1) B) Fair Use as Constitutional Requirement => "Fair Access" exists C) Judical "balancing" explicitly contradicted by the statue 1) Preempts Copyright Office 2) Violates 1201(c)(4) & 1203(b)(1) D) Balancing does not apply to paracopyright 1) An "exclusive right" in 17 USC 106 must be at stake 2) "Balancing" not applicable to Commerce Clause based paracopyright E) DeCSS is speech 1) Junger (& Bernstein) 2) Computer programs are "literary works" 3) 2600 is a publication or "press" under first amendment F) Implications of concluding the DeCSS is speech 1) 1201(a)(2) would fail "Least Restrictive Means" test here 2) Access undefined in 1201(a). Void-for-vagueness 3) Unconstitutional if applied to non-commercial speech 4) 1201(c)(4) becomes affirmative defence 5) 1203(b)(1) requires no prior restraint III) Implications of Decision A) Little harm to Plaintiffs 1) Lossless copying fictional, not even seriously alleged 2) Lossy copying harms are all speculative 3) Piracy is already illegal: banning DeCSS doesn't stop infringement B) Huge harm to Defendent & Public 1) Creates new form of IP not allowed under Constitution 2) Chills free speech 3) gags IT press 4) Destroys Fair Use 5) Weakens First Sale 6) Shrinks the public domain & impedes arts and sciences __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 17:16:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA08771 for dvd-discuss-outgoing; Thu, 13 Jul 2000 17:16:55 -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 RAA08768 for ; Thu, 13 Jul 2000 17:16:53 -0400 Message-ID: <20000713211515.20638.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Thu, 13 Jul 2000 14:15:15 PDT Date: Thu, 13 Jul 2000 14:15:15 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS 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 --- Leland Ray wrote: > Wait, I'm confused...does Mr. Gold mean the title key, or > is the key the machine code that performs the transformation? Does it matter? I assumed he ment the raw 40-bit sequence. > In other words, can the key have a functional component? I > know, this is very different from a cryptographic definition > of key. Well, it's a software *implementation* of a cryptographic key. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 18:49:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09563 for dvd-discuss-outgoing; Thu, 13 Jul 2000 18:49:40 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA09560 for ; Thu, 13 Jul 2000 18:49:38 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id PAA14006 for ; Thu, 13 Jul 2000 15:48:18 -0700 Date: Thu, 13 Jul 2000 15:48:17 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000, sam th wrote: > On Thu, 13 Jul 2000, Richard Hartman wrote: > > > > You are _authorized_ to listen to a record if you buy a record player. > > You are _authorized_ to listen to a cassette if you buy a cassette player. > > You are _authorized_ to play a VHS tape if you buy a VHS tape player. > > I would think that merely buying the record authorizes you to listen to > it. There is nothing legally preventing me from building my own record > (or VHS, or CD, ...) player. Right? If buying a licensed player authorizes me to view movies, then I don't even have to buy the movies! I'm authorized to view it when I buy my licensed player! I can pirate whatever I want because I'm authorized, baby. (Now I have to go buy a player.) I've actually wondered why this wasn't brought up on day one. I guess I assumed everyone was smarter than me. The DVD player (software or otherwise) is just a mechanism allowing me to view the data on the disc I bought. I have a CD player (and could make one) and I have a record player (and I could EASILY make one... in fact, I did when I was in fifth grade) and I have VHS VCR and could probably make one. Why can't a make a DVD player? Because I'm not licensed. Not licensed to use the patented encoding algorithm? No, nothing is patented. Oh... then not licensed for what? Not licensed to use CSS. But I reverse engineered it and since it's not patented, that's ok. QED. Sorta. Can anyone refute this? J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 18:59:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA09763 for dvd-discuss-outgoing; Thu, 13 Jul 2000 18:59:03 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA09760 for ; Thu, 13 Jul 2000 18:59:01 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id PAA14889 for ; Thu, 13 Jul 2000 15:57:53 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 15:57:53 -0700 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 (9.0.2911.0) In-Reply-To: <200007121904.PAA10132@soggy-fibers.ai.mit.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau, on Wednesday, July 12, 2000 12:05 PM, wrote >But how can you tell if a technology was "designed and intended for >use as a protection mechanism"? That's the point of my MPEG-DPG >hypothetical --- can something that looks for all the world like a >compression algorithm, and which includes only components which >perform functions analogous to those of other lossy compression >algorithms, be turned into a "protection mechanism" simply because >some copyright holder asserts that it is one? You can tell if the creator says it was, and if it includes features necessary to provide reasonable protection. Someone can't just co-opt any existing technology. But if they design something as protection mechanism and do things such as encrypting content, issuing keys or certificates, and controlling use of the technology, then it's Your example of MPEG-DPG, if it did nothing different than other lossy compression mechanisms, probably wouldn't count. At this point I've lost track of what the original discussion was about. ;-) Back to the ASF subthread... Ravi Nanavati, on Wednesday, July 12, 2000 4:22 PM, wrote >But the point here is if "any technology designed and intended for >use as a protection mechanism" is a TPM, then ASF qualifies as a >TPM because one of Microsoft's interests in maintaining control >of ASF is so that it tie rights management to ASF. Richard Hartman, on Wednesday, July 12, 2000 2:11 PM, wrote >No ... but you can't implement it w/o licensing (or violating) >their patent. In this case whether it is asserted to be a >protection mechanism or not is irrelevant. The freeware >developers must pay up, or not include the feature. To re-emphasize points from my earlier post, ASF is not a TPM. ASF is a streaming container format. Calling ASF a TPM is like calling TCP/IP at TPM because RealNetworks streams protected content over it. I can develop gobs of software that uses ASF and I don't have to pay Microsoft a cent. The general arguments being made are correct, but they should be referring to Microsoft WMA (Windows Media Audio) and DRM (Digital Rights Management), not ASF. These are the bits that Microsoft is keeping very proprietary and very controlled. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 19:09:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA09958 for dvd-discuss-outgoing; Thu, 13 Jul 2000 19:09:13 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA09955 for ; Thu, 13 Jul 2000 19:09:12 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA12899 for ; Thu, 13 Jul 2000 16:08:04 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] LOC post-hearing comments are available Date: Thu, 13 Jul 2000 16:08:04 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <20000712194317.B9454@zork.net> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen, on Wednesday, July 12, 2000 7:43 PM, wrote >DTCP has some competition, but it seems that it's the most popular >spec among companies with an interest in this stuff. (Can someone >refresh my memory as to whether DTCP is the same as 5C?) Yes, DTCP is the same as 5C. More info at www.dtcp.com and in my DVD FAQ. It's licensed by the DTLA (Digital Transmission Licensing Administrator), which is part of LMI (License Management International), of which DVD CCA is also part. I think the whole thing is being run by John Hoy. The main competitor to DTCP at this point is XCA from Thomson and Zenith, but DTCP has already been integrated into IEEE-1394 controllers by Sony, Crystal, and others, so XGA doesn't stand much of a chance. >I think the other proposal alluded to in the IEEE piece is HDCP >(High-bandwidth Digital Copy Protection). HDCP is the copy protection scheme for DVI (digital video interface), the next-generation digital version of the computer VGA display connection standard. AFAIK it's not related to IEEE-1394. The CSS license expects that these protection schemes will be used to continue access control when DVD works are transmitted over external buses or networks. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 19:18:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10042 for dvd-discuss-outgoing; Thu, 13 Jul 2000 19:18:44 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA10039 for ; Thu, 13 Jul 2000 19:18:43 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA09273 for ; Thu, 13 Jul 2000 16:17:36 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 16:17:35 -0700 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 (9.0.2911.0) In-Reply-To: <8kjkmj$4ur$1@blowfish.isaac.cs.berkeley.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner, on Wednesday, July 12, 2000 10:40 PM, wrote > >In article , >Jim Taylor wrote: >> Authority to access is accomplished by the presence of CSS keys. > >Great! I'll be sure to have my (hypothetical) DeCSS variant include >the CSS keys, so that it can be considered authorized to play DVD's. But you are not licensed to use the CSS keys. That's the plaintiffs' point. I assume they'll make the key analogy -- that you can't break into a house just because you have the keys. >In other words, unless I'm misunderstanding your meaning, this >intepretation seems to take all the bite out of the DMCA. I don't think so. The CSS keys, along with the CSS authentication algorithm and decryption algorithm, compose a TPM. If your hypothetical DeCSS variant were intended primarily to circumvent the TPM, then you'd be in trouble. If your hypothetical DeCSS variant were intended to allow you to play a movie, then, according to the way most of us read the DMCA, you're ok. According to the plaintiffs, you're not. Hmmm, we seem to be back to where this all started. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 19:30:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10156 for dvd-discuss-outgoing; Thu, 13 Jul 2000 19:30:13 -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 TAA10153 for ; Thu, 13 Jul 2000 19:30:12 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id TAA21934 for ; Thu, 13 Jul 2000 19:28:34 -0400 Date: Thu, 13 Jul 2000 19:28:33 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000, Jim Taylor wrote: > David A. Wagner, on Wednesday, July 12, 2000 10:40 PM, wrote > > > >In article , > >Jim Taylor wrote: > >> Authority to access is accomplished by the presence of CSS keys. > > > >Great! I'll be sure to have my (hypothetical) DeCSS variant include > >the CSS keys, so that it can be considered authorized to play DVD's. > > But you are not licensed to use the CSS keys. That's the plaintiffs' point. > I assume they'll make the key analogy -- that you can't break into a house > just because you have the keys. Then this would mean that authority is not granted by virtue of having keys. While those who are authorized always have keys, those who have keys are not always authorized. If those who legally buy a legally made DVD are authorized then we're all generally okay to use DeCSS except for the infamous Asian Pirates(tm). But the MPAA has denied this. If it's MPAA-approved players than there's a really evident tying argument that's going to sink them. Otherwise where the hell is authorization coming from? Between the statements the MPAA has made and the various useful laws on the books (e.g. Sherman Act) a good demonstration of logic ought to be able to win us this case. ;) Maybe there's a high-school foresnsics team that Garbus can borrow to bash the plantiff's arguments with... From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 19:50:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA10335 for dvd-discuss-outgoing; Thu, 13 Jul 2000 19:50:41 -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 TAA10332 for ; Thu, 13 Jul 2000 19:50:41 -0400 Received: from ip165.bedford2.ma.pub-ip.psi.net ([38.32.10.165]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13CsjV-0000QF-00 for dvd-discuss@eon.law.harvard.edu; Thu, 13 Jul 2000 19:49:33 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 19:43:27 -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 TAA10333 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000 19:28:33 -0400 (EDT), Joshua Stratton wrote: >On Thu, 13 Jul 2000, Jim Taylor wrote: > >> But you are not licensed to use the CSS keys. That's the plaintiffs' point. >> I assume they'll make the key analogy -- that you can't break into a house >> just because you have the keys. > >Then this would mean that authority is not granted by virtue of having >keys. While those who are authorized always have keys, those who have keys >are not always authorized. I think it's a fair bet that we are not authorized to hit "play." __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 20:10:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA10733 for dvd-discuss-outgoing; Thu, 13 Jul 2000 20:10:10 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA10730 for ; Thu, 13 Jul 2000 20:10:08 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA06454 for ; Thu, 13 Jul 2000 17:09:00 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 17:09:00 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson, on Thursday, July 13, 2000 4:43 PM, wrote > >On Thu, 13 Jul 2000 19:28:33 -0400 (EDT), Joshua Stratton wrote: > >>Then this would mean that authority is not granted by virtue of having >>keys. While those who are authorized always have keys, those who have keys >>are not always authorized. > >I think it's a fair bet that we are not authorized to hit "play." And it's even a fairer bet that we're not authorized to hit "record." Authority is granted by virtue of having keys (and knowing what to do with them, which is part of the scheme). But the keys have to be authorized. The plaintiffs will probably argue that the use of the keys has to be authorized as well. That is, they can be used within a CSS-licensed player, but not elsewhere. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 20:43:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11296 for dvd-discuss-outgoing; Thu, 13 Jul 2000 20:43:40 -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 UAA11293 for ; Thu, 13 Jul 2000 20:43:38 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CL1G>; Thu, 13 Jul 2000 17:42:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CEA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Thu, 13 Jul 2000 17:42:31 -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: Jeme A Brelin [mailto:jeme@brelin.net] > Sent: Thursday, July 13, 2000 3:48 PM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS > > > > On Thu, 13 Jul 2000, sam th wrote: > > On Thu, 13 Jul 2000, Richard Hartman wrote: > > > > > > You are _authorized_ to listen to a record if you buy a > record player. > > > You are _authorized_ to listen to a cassette if you buy a > cassette player. > > > You are _authorized_ to play a VHS tape if you buy a VHS > tape player. > > > > I would think that merely buying the record authorizes you > to listen to > > it. There is nothing legally preventing me from building > my own record > > (or VHS, or CD, ...) player. Right? > > If buying a licensed player authorizes me to view movies, then I don't > even have to buy the movies! I'm authorized to view it when I buy my > licensed player! I can pirate whatever I want because I'm authorized, > baby. (Now I have to go buy a player.) > > I've actually wondered why this wasn't brought up on day one. > I guess I > assumed everyone was smarter than me. > > The DVD player (software or otherwise) is just a mechanism > allowing me to > view the data on the disc I bought. I have a CD player (and > could make > one) and I have a record player (and I could EASILY make > one... in fact, I > did when I was in fifth grade) and I have VHS VCR and could > probably make > one. Why can't a make a DVD player? Because I'm not licensed. Not > licensed to use the patented encoding algorithm? No, nothing is > patented. Oh... then not licensed for what? Not licensed to use > CSS. But I reverse engineered it and since it's not > patented, that's ok. > > QED. > > Sorta. > > Can anyone refute this? > J. This is what we've been trying to get to for quite a while, but I think we've finally got a very simple formulation for 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 Jul 13 20:46:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11453 for dvd-discuss-outgoing; Thu, 13 Jul 2000 20:46:48 -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 UAA11450 for ; Thu, 13 Jul 2000 20:46:47 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CL1L>; Thu, 13 Jul 2000 17:45:46 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CEB@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 17:45:44 -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 Taylor [mailto:jtfrog@usa.net] > Sent: Thursday, July 13, 2000 5:09 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Ron Gustavson, on Thursday, July 13, 2000 4:43 PM, wrote > > > >On Thu, 13 Jul 2000 19:28:33 -0400 (EDT), Joshua Stratton wrote: > > > >>Then this would mean that authority is not granted by > virtue of having > >>keys. While those who are authorized always have keys, > those who have keys > >>are not always authorized. > > > >I think it's a fair bet that we are not authorized to hit "play." > > And it's even a fairer bet that we're not authorized to hit "record." > > > Authority is granted by virtue of having keys (and knowing > what to do with > them, which is part of the scheme). But the keys have to be > authorized. The > plaintiffs will probably argue that the use of the keys has > to be authorized > as well. That is, they can be used within a CSS-licensed > player, but not > elsewhere. But if it is the keys that denote authority, then I can play those infamous Asian Pirated DVDs on my -licensed- player with complete authority, no? Now if they want to authorize each and every -use- of those (already authorized) keys, then they'd better have someone in my living room ready to answer the question every time I want to slip a DVD into the player... -- -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 Jul 13 20:48:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA11567 for dvd-discuss-outgoing; Thu, 13 Jul 2000 20:48:19 -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 UAA11564 for ; Thu, 13 Jul 2000 20:48:19 -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 UAA11977 for ; Thu, 13 Jul 2000 20:47:11 -0400 (EDT) Message-Id: <4.2.2.20000713195433.02654ce0@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 13 Jul 2000 20:47:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Timing question (was: Amicus trial brief outline & RAS) In-Reply-To: <20000713165943.11288.qmail@web510.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 While the outlines being posted have some great points, I'd suggest we hold off drafting any formal papers for the moment. We don't want to annoy Kaplan, who has already gotten a lot of amicus submissions, and we wouldn't want to interfere with the defense team's strategies. Outlines, analyses, and bullet points can still be very helpful to the defense team, and I've been trying to pass along highlights without overwhelming Ed. I hope we will be getting transcripts and reports shortly after the daily proceedings so our many eyes can get to work spotting bugs in the plaintiffs' presentation. Then, if it looks as though Kaplan will be receptive to a post-trial brief, we'll be in a better position to tie arguments to the evidence that has been presented at trial. Thanks for all the great work. --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 Thu Jul 13 21:31:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12101 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:31:33 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12098 for ; Thu, 13 Jul 2000 21:31:32 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA21987 for ; Thu, 13 Jul 2000 20:30:08 -0500 Message-ID: <396E6EB8.EBC57FC0@mninter.net> Date: Thu, 13 Jul 2000 20:36:56 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Timing question (was: Amicus trial briefoutline & RAS) References: <4.2.2.20000713195433.02654ce0@pop.bellatlantic.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 One thing I don't understand ("One thing?!"): Does the trial have an expected duration? One day? As long as it takes? Or is that yet to be decided? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 21:43:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12243 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:43:06 -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 VAA12240 for ; Thu, 13 Jul 2000 21:43:05 -0400 Received: from ip62.bedford.ma.pub-ip.psi.net ([38.32.9.62]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13CuUH-0001hK-00 for dvd-discuss@eon.law.harvard.edu; Thu, 13 Jul 2000 21:41:58 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 21:35:51 -0400 Message-ID: References: <5A8391CA2D9ED311AFAA080009D982B10B1CEB@mail2.onetouch.com> In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CEB@mail2.onetouch.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 VAA12241 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000 17:45:44 -0700, Richard Hartman wrote: Jim Taylor wrote: >> > >> >I think it's a fair bet that we are not authorized to hit "play." >> >> And it's even a fairer bet that we're not authorized to hit "record." No question there--luckily there's no red button to entrap me. >> Authority is granted by virtue of having keys (and knowing >> what to do with >> them, which is part of the scheme). But the keys have to be >> authorized. The >> plaintiffs will probably argue that the use of the keys has >> to be authorized >> as well. That is, they can be used within a CSS-licensed >> player, but not >> elsewhere. > >But if it is the keys that denote authority, then I can >play those infamous Asian Pirated DVDs on my -licensed- >player with complete authority, no? Sure man, they're good to go--just not to buy, or sell...or make. >Now if they want to authorize each and every -use- of those >(already authorized) keys, then they'd better have someone >in my living room ready to answer the question every time >I want to slip a DVD into the player... And to press play every night. (Now who do I want to come push my buttons? Uma Thurman, anyone? Perhaps Maggie Cheung for the Asian pirate discs...) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 21:54:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12331 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:54:39 -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 VAA12328 for ; Thu, 13 Jul 2000 21:54:38 -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:2.21) with ESMTP id VAA02070 for ; Thu, 13 Jul 2000 21:53:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA08036; Thu, 13 Jul 2000 21:53:30 -0400 (EDT) Date: Thu, 13 Jul 2000 21:53:30 -0400 (EDT) Message-Id: <200007140153.VAA08036@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <200007131804.OAA18629@soggy-fibers.ai.mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> <200007131804.OAA18629@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: > Richard Hartman writes: > > I'm kinda thinking that we -want- it to bottom out there: > > reductio ad absurdum. Show how ridiculous their claim is > > re. past precedent. > > Exactly the game I've been playing since Sunday; haven't you noticed? ;-) > > Time to get started on that darft, I guess... Well, there's an early draft (or heck, maybe it is just a darft) at http://www.ai.mit.edu/people/rst/dmca/auth/auth.html This one concentrates on my "slippery slope" argument, with worked examples and various ancillary notes (like a page or so on why it doesn't matter that CSS is "encryption" in determining whether or not it is effective access control). LaTeX source is in http://www.ai.mit.edu/people/rst/dmca/auth.tex This presented as a standalone argument; I could easily see some pieces of it incorporated in a more comprehensive brief, though that would probably wind up being a fairly long document. FWIW, I left the "authorization model unknown to consumers" argument out of this one, because as I thought about it, it started to make me a little nervous. The potential problem is this --- suppose we win with that argument. The result might be that the next time they do one of these technologies, they are just very careful to print on the box of each disc, "For use only in licensed WimpyDisc equipment", and they have a court precedent, due to the "victory", saying that *as long as such notice is provided*, the WimpyDisc equivalent to DeCSS *is* circumvention. I suspect that the MPAA would have an easier time living with that than I would. Anyway, have at it... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 21:56:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12411 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:56:02 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12408 for ; Thu, 13 Jul 2000 21:56:01 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA14641 for ; Thu, 13 Jul 2000 18:54:46 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA06030; Thu, 13 Jul 2000 18:53:17 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Date: 13 Jul 2000 18:52:10 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8klroa$5sc$1@blowfish.isaac.cs.berkeley.edu> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article <200007131121.HAA23593@soggy-fibers.ai.mit.edu>, Robert S. Thau wrote: > So, it certainly looks to me like the upshot here is the same as in my > colloquy with Jim Taylor --- on the MPAA's reading of the law, *any* > trade-secret process which is necessary to gain access to their works > can be described as "encryption", by the MPAA's standard, and then, on > their reading, 1201(a) gives them unlimited authority to vet > implementations of that process by anyone. Except that I think their argument must be _even_ broader than that. If I remember correctly, in the NY case they've never even claimed that CSS is properly protected by trade secret. If this were necessary before CSS gets 1201(a) protection as a TPM, they'd have to mention it. Consequently, I think we can conclude that, in their reading (whatever it may be), the trade secret status of CSS is irrelevant. So, the upshot seems to be that even MPEG decompression, or apparently any transformation whatsoever, could qualify. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 21:57:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12451 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:57:12 -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 VAA12448 for ; Thu, 13 Jul 2000 21:57:12 -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:2.21) with ESMTP id VAA02429 for ; Thu, 13 Jul 2000 21:56:05 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id VAA08978; Thu, 13 Jul 2000 21:56:03 -0400 (EDT) Date: Thu, 13 Jul 2000 21:56:03 -0400 (EDT) Message-Id: <200007140156.VAA08978@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <20000713183240.6275.qmail@web511.mail.yahoo.com> References: <20000713183240.6275.qmail@web511.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I had fogotten about this quote. It actually proves out the 1201(f)(1) > reverse engineering claim. The title key which encrypts the actual .vob > files is software, so "identifying and analyzing those elements of the > program that are necessary to achieve interoperability" allows access > to the title key. Then the "first half" of (f)(2) applies and (f)(3) > follows, independently of the "second half" of (f)(2) argument. Actually, when he says this, he seems to me at least to be talking about the CSS machinery as embedded in the player --- the player key, and that software that uses it... but I'm not sure that this degree of textual analysis will be really productive; *he* may not have known what he was referring to at this level of detail. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 21:57:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA12483 for dvd-discuss-outgoing; Thu, 13 Jul 2000 21:57:49 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA12469 for ; Thu, 13 Jul 2000 21:57:48 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA14661 for ; Thu, 13 Jul 2000 18:56:33 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA06056; Thu, 13 Jul 2000 18:55:05 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Date: 13 Jul 2000 18:54:55 -0700 Organization: A poorly-installed InterNetNews site Lines: 9 Distribution: isaac Message-ID: <8klrtf$5t7$1@blowfish.isaac.cs.berkeley.edu> References: <20000712134349.15254.qmail@hotmail.com> <200007121552.LAA26655@soggy-fibers.ai.mit.edu> <396CA032.3B6853BD@mninter.net> <200007131121.HAA23593@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 wrote: > So, if anyone thought that CSS was had anything to do with preventing > "Asian piracy", well, now you know... Yup. And, there was plenty of evidence that CSS had nothing to do with preventing "Asian piracy" even before DeCSS became available. The IEEE Spectrum paper, for instance, is quite frank that CSS is not about stopping dedicated pirates; it is about "keeping honest people honest", and about forcing manufacturers to adopt the industry's preferred licensing terms. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 22:01:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12557 for dvd-discuss-outgoing; Thu, 13 Jul 2000 22:01:33 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA12554 for ; Thu, 13 Jul 2000 22:01:32 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id VAA25012 for ; Thu, 13 Jul 2000 21:00:01 -0500 Message-ID: <396E7388.E3E997C9@mninter.net> Date: Thu, 13 Jul 2000 20:57:28 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> <200007131804.OAA18629@soggy-fibers.ai.mit.edu> <200007140153.VAA08036@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 > FWIW, I left the "authorization model unknown to consumers" argument > out of this one, because as I thought about it, it started to make me > a little nervous. The potential problem is this --- suppose we win > with that argument. The result might be that the next time they do > one of these technologies, they are just very careful to print on the > box of each disc, "For use only in licensed WimpyDisc equipment", and > they have a court precedent, due to the "victory", saying that *as > long as such notice is provided*, the WimpyDisc equivalent to DeCSS > *is* circumvention. I suspect that the MPAA would have an easier > living with that than I would. I'm not so sure... Asserting anti-competitive tying would be trivial with such a pronouncement. Why do you think they're being so circumspect about CSS and the DVDCCA? If anti-trust weren't an issue, they would have done it right the first time. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 22:03:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12598 for dvd-discuss-outgoing; Thu, 13 Jul 2000 22:03:43 -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 WAA12595 for ; Thu, 13 Jul 2000 22:03:42 -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:2.21) with ESMTP id WAA03149 for ; Thu, 13 Jul 2000 22:02:35 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA10652; Thu, 13 Jul 2000 22:02:34 -0400 (EDT) Date: Thu, 13 Jul 2000 22:02:34 -0400 (EDT) Message-Id: <200007140202.WAA10652@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: References: <200007121904.PAA10132@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Robert S. Thau, on Wednesday, July 12, 2000 12:05 PM, wrote > > >But how can you tell if a technology was "designed and intended for > >use as a protection mechanism"? That's the point of my MPEG-DPG > >hypothetical --- can something that looks for all the world like a > >compression algorithm, and which includes only components which > >perform functions analogous to those of other lossy compression > >algorithms, be turned into a "protection mechanism" simply because > >some copyright holder asserts that it is one? > > You can tell if the creator says it was, and if it includes features > necessary to provide reasonable protection. Someone can't just co-opt any > existing technology. But if they design something as protection mechanism > and do things such as encrypting content, issuing keys or certificates, and > controlling use of the technology, then it's > > Your example of MPEG-DPG, if it did nothing different than other lossy > compression mechanisms, probably wouldn't count. Ummm... the whole point of the MPEG-DPG example was precisely that it did nothing different than other lossy compression mechanisms. See also my "darft" on why I feel that the "encryption" and "keys" in CSS are pretextual veneer on machinery that has another purpose entirely (the direct pointer is http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION00081000000000000000 --- the '#SECTION...' part came from a translator. Sigh...). rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 22:14:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12691 for dvd-discuss-outgoing; Thu, 13 Jul 2000 22:14:55 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA12688 for ; Thu, 13 Jul 2000 22:14:54 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA14743 for ; Thu, 13 Jul 2000 19:13:39 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id TAA06097; Thu, 13 Jul 2000 19:12:11 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 13 Jul 2000 19:12:01 -0700 Organization: A poorly-installed InterNetNews site Lines: 23 Distribution: isaac Message-ID: <8klsth$5ug$1@blowfish.isaac.cs.berkeley.edu> References: <8kjkmj$4ur$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > But you are not licensed to use the CSS keys. [...] Ahh, ok. Maybe now I am understanding better your preferred reading. It seems that the authority model you are suggesting is that you get authority to use the CSS keys by buying a DVD player, or somesuch. If you use those keys without that authority, you violate the DMCA. Is that the idea? Ok, I still like this one! The great thing is that it's really easy to get licensed to use the CSS keys -- you just go buy a DVD player. So, this means that I can still have my Linux player, I can still build my own player to exercise fair use rights, etc.: I just have to buy a Xing player (or any other player I like, for any OS whatsoever), extract the keys from it, and install them into my own Linux player. Good. Actually, this looks like it would be a pretty fair compromise all around. The copyright holders would get to have the principle "if you haven't payed for the rights, you can't use it" protected by law; the rest of us would keep to have our fair use rights. Or did I misunderstand your suggested DMCA interpretation again in some different way this time? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 22:17:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA12789 for dvd-discuss-outgoing; Thu, 13 Jul 2000 22:17:01 -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 WAA12786 for ; Thu, 13 Jul 2000 22:17:00 -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:2.21) with ESMTP id WAA04588 for ; Thu, 13 Jul 2000 22:15:53 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA15011; Thu, 13 Jul 2000 22:15:52 -0400 (EDT) Date: Thu, 13 Jul 2000 22:15:52 -0400 (EDT) Message-Id: <200007140215.WAA15011@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Timing question (was: Amicus trial brief outline & RAS) In-Reply-To: <4.2.2.20000713195433.02654ce0@pop.bellatlantic.net> References: <20000713165943.11288.qmail@web510.mail.yahoo.com> <4.2.2.20000713195433.02654ce0@pop.bellatlantic.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > While the outlines being posted have some great points, I'd suggest we hold > off drafting any formal papers for the moment. We don't want to annoy > Kaplan, who has already gotten a lot of amicus submissions, and we wouldn't > want to interfere with the defense team's strategies. Good thing I kept it informal then ;-). I was hoping for feedback from a lawyer on the list about whether the arguments were worth pursuing further, but it seems there's no rush... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 13 22:37:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA13406 for dvd-discuss-outgoing; Thu, 13 Jul 2000 22:37:03 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA13403 for ; Thu, 13 Jul 2000 22:37:02 -0400 Received: from 208-58-194-64.s572.tnt9.lnhva.md.dialup.rcn.com ([208.58.194.64] helo=yuggoth) by smtp01.mrf.mail.rcn.net with smtp (Exim 3.15 #2) id 13CvKU-0007AY-00 for dvd-discuss@eon.law.harvard.edu; Thu, 13 Jul 2000 22:35:54 -0400 From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Thu, 13 Jul 2000 22:11:12 -0400 X-Mailer: KMail [version 1.0.29] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00071322340800.17431@yuggoth> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 13 Jul 2000, you wrote: > >I think it's a fair bet that we are not authorized to hit "play." > > And it's even a fairer bet that we're not authorized to hit "record." > > > Authority is granted by virtue of having keys (and knowing what to do with > them, which is part of the scheme). But the keys have to be authorized. The > plaintiffs will probably argue that the use of the keys has to be authorized > as well. That is, they can be used within a CSS-licensed player, but not > elsewhere. Maybe I'm just not thinking straight, but: It is well known that theatrical companies have to license performance rights from playrights, usually through a management agency. This is how rights owners control the right to public performance... Now, suppose that you went to see a high school theatrical troupe perform a play of recent vintage ("Assasains"). Suppose that you paid 7.50 for a ticket. Obviously, you have purchased the right to see the play. The drama troupe, however, has not properly licensed the play from the author, andin the middle of the second act, lawyers for the playwright burst in and shut down the show. Obviously, you have the right to demand a refund. But you do not have the right to see this particular production of "Assasains". Now, let us take another look at the DVDCCA liscensing model. The ticket is the DVD disc. The playwright is an MPAA member company. The theatrical troupe is the player manufacturer, the auditorium is your living room, and the stage is your tv/dvd player. The "video cameras and other recording devices prohibited" notisce is Macrovision. The dvd player has a licence to perform a dvd on your tv. It is authorized to do this because it has a key embedded in rom with which it can authenticate itself to the DVD. It all makes perfect sense. All you need do is improperly anthropomorphise an piece of electronic equipment :) Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 00:09:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13769 for dvd-discuss-outgoing; Fri, 14 Jul 2000 00:09:03 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13766 for ; Fri, 14 Jul 2000 00:09:00 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA04469 for ; Thu, 13 Jul 2000 23:07:30 -0500 Message-ID: <396E914A.FF44B4C2@mninter.net> Date: Thu, 13 Jul 2000 23:04:26 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <00071322340800.17431@yuggoth> 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Jeremy Erwin wrote: > Now, let us take another look at the DVDCCA liscensing model. The > ticket is the DVD disc. The playwright is an MPAA member company. The > theatrical troupe is the player manufacturer, the auditorium is your > living room, and the stage is your tv/dvd player. The "video cameras > and other recording devices prohibited" notisce is Macrovision. I have little doubt that this is the aim of the plainiffs, to create a movie-theater like distribution system that makes everyone a theater owner rather than a citizen with fair use rights. It has alternately been seen in the Microsoft Kerberos document and is basically an NDA to the world. Unfortunately, this is antithetical to the rights granted by and the purpose of copyright, and I think it's been called misuse of copyright--which has a specific remedy. It's pretty clear, too, that specific claims to rights they might have enumerated on the DVD box would have been specious or fraudulent. So they didn't bother. Instead, they dress the DVD banquet table by appearing to grant authority at sale, then pull the tabelcloth from under 2600's (and everyone's) place setting after the meal has begun, leaving the table unharmed and hoping nobody will notice that the tablecloth is gone and the plaintiffs put it in the fireplace. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOW6RSDik9YADgV7kEQIKrQCfUNlsVOXpuaRKB5S619E60y59cGMAoLbU avVQFIDJVEhINU+i6Pzx2vUT =7L09 -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 00:55:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA14018 for dvd-discuss-outgoing; Fri, 14 Jul 2000 00:55:17 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA14015 for ; Fri, 14 Jul 2000 00:55:16 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6E4tFQ02149; Fri, 14 Jul 2000 00:55:15 -0400 Date: Fri, 14 Jul 2000 00:55:15 -0400 Message-Id: <200007140455.e6E4tFQ02149@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeme A Brelin wrote: > >I've actually wondered why this wasn't brought up on day one. I guess I >assumed everyone was smarter than me. I left the list some months ago and I do remember it being brought up. >The DVD player (software or otherwise) is just a mechanism allowing me to >view the data on the disc I bought. I have a CD player (and could make >one) and I have a record player (and I could EASILY make one... in fact, I >did when I was in fifth grade) and I have VHS VCR and could probably make >one. Why can't a make a DVD player? Because I'm not licensed. Not >licensed to use the patented encoding algorithm? No, nothing is >patented. Oh... then not licensed for what? Not licensed to use >CSS. But I reverse engineered it and since it's not patented, that's ok. > >QED. > >Sorta. > >Can anyone refute this? >J. Public court: Reverse Engineering EWWWWWWWWW. I wonder what technique they're using to discover the human genome code and create vaccines, etc if it isn't basic reverse engineering principles. This court: Oh god haven't we gone over this before? The very fact we're still on this topic is that the MPAA knew what it was doing. You see there is no spoon just a circular nightmare we've replaying. I can't say that I can argue against it given the fact I listen to .ogg files patent free and quite satisfied even in its current unoptimized form. See vorbis.com. >-- > ----------------- > Jeme A Brelin > jeme@brelin.net > ----------------- > [cc] counter-copyright > http://www.openlaw.org > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 01:23:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14147 for dvd-discuss-outgoing; Fri, 14 Jul 2000 01:23:51 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA14144 for ; Fri, 14 Jul 2000 01:23:50 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6E5Nnn03917; Fri, 14 Jul 2000 01:23:49 -0400 Date: Fri, 14 Jul 2000 01:23:49 -0400 Message-Id: <200007140523.e6E5Nnn03917@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Jermey Ignore previous Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin wrote: >> as well. That is, they can be used within a CSS-licensed player, but not >> elsewhere. Somehow I betting they took a huge risk on saying that instead outright telling you what you can or can't do according to their true intent. >Maybe I'm just not thinking straight, but: > >It is well known that theatrical companies have to license performance rights >from playrights, usually through a management agency. This is how rights owners >control the right to public performance... > >Now, suppose that you went to see a high school theatrical troupe perform a >play of recent vintage ("Assasains"). Suppose that you paid 7.50 for a ticket. >Obviously, you have purchased the right to see the play. The drama troupe, >however, has not properly licensed the play from the author, andin the middle >of the second act, lawyers for the playwright burst in and shut down the show. >Obviously, you have the right to demand a refund. But you do not have the right >to see this particular production of "Assasains". > >Now, let us take another look at the DVDCCA liscensing model. The ticket is the >DVD disc. The playwright is an MPAA member company. The theatrical troupe is >the player manufacturer, --->Bingo... There's the problem. I can in no way see an unconsciously --->animate object as the drama troupe. There was no between the player --->itself and the company. Only living things can conceive of profit, --->monetary or servicewise. Edit from missent/misread e-mail... The key here is: In the theatre, the drama troupe pays the author for rights to perform. They pay differently for every author they pay to. They get different rights. I pay the same price to see any performance at the high school. $10 adults students $5. Troupe to author: different the particular performance counts. Me to troupe: same price that year for any performance, In the case of the dvd, I pay the author for a movie a different price but chosing one drama troupe I will pay the same price every time I buy a player from them during the market viability of that player regardless what I watch. Question is the manufacturer the troupe? Manufacturer to MPAA: same price regardless of performance Me to Manufacturer: same price during the market viability period of the player Me to MPAA: DIFFERENT PRICE depending on the movie I buy. Case in point... Ever buy transcripts? Different prices like you wouldn't believe. Buying the DVD isn't even a question of performance. Performance would make sense in a multiplex theater. It's in my home for anytime I wish. There's a sense that I now OWN a part of something. I am the drama troupe as soon as I'm teaching a class on film using that video. I am the drama troupe if I play the video for my friends. I may be the drama troupe if I'm studying the film also. >the auditorium is your living room, and the stage is >your tv/dvd player. The "video cameras and other recording devices prohibited" >>notisce is Macrovision. > >So far so good and we can throw out CSS from this particular argument because it does not prevent copying. Macrovision does in fact cause copies to be inferior. >>The dvd player has a licence to perform a dvd on your tv. It is authorized to >>do this because it has a key embedded in rom with which it can authenticate >>itself to the DVD. > The problem with this analogy is that to prevent anything I want to prevent, discussion, copying, criticism, viewing by septuagenarians, I can add a chain listing that every component [manufacturer] of a DVD is required to be licensed. This is exactly the same crap the RIAA is pulling by requing licenses for every use when they in fact benefit only the buyer not the service provider, or at least the majority of the profit, monetary or servicewise is in the hands of the buyer. > >>It all makes perfect sense. All you need do is improperly anthropomorphise an >>piece of electronic equipment :) > If you're a piece of meat and people who don't directly touch the content can sign contracts or buy licenses for what you haven't bought yet, sure. > >>Jeremy Rares >Windows the other 70's technology. >---------------------- >Do you do Linux? :) >Get your FREE @linuxstart.com email address at: http://www.linuxstart.com > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 01:31:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14231 for dvd-discuss-outgoing; Fri, 14 Jul 2000 01:31:38 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA14228 for ; Fri, 14 Jul 2000 01:31:37 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6E5VbQ04997; Fri, 14 Jul 2000 01:31:37 -0400 Date: Fri, 14 Jul 2000 01:31:37 -0400 Message-Id: <200007140531.e6E5VbQ04997@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng wrote: >Jeremy Erwin wrote: >> Now, let us take another look at the DVDCCA liscensing model. The >> ticket is the DVD disc. The playwright is an MPAA member company. The >> theatrical troupe is the player manufacturer, the auditorium is your >> living room, and the stage is your tv/dvd player. The "video cameras >> and other recording devices prohibited" notisce is Macrovision. > >I have little doubt that this is the aim of the plainiffs, to create a >movie-theater like distribution system that makes everyone a theater >owner rather than a citizen with fair use rights. It has alternately >been seen in the Microsoft Kerberos document and is basically an NDA to >the world. > >Unfortunately, this is antithetical to the rights granted by and the >purpose of copyright, and I think it's been called misuse of >copyright--which has a specific remedy. It's pretty clear, too, that >specific claims to rights they might have enumerated on the DVD box >would have been specious or fraudulent. So they didn't bother. Worse as in my earlier misread post to Jeremy... The player manufacturer is decoy. There is no drama troupe. Only I the buyer can be even close to that analogy. >Instead, they dress the DVD banquet table by appearing to grant >authority at sale, then pull the tabelcloth from under 2600's (and >everyone's) place setting after the meal has begun, leaving the table >unharmed and hoping nobody will notice that the tablecloth is gone and >the plaintiffs put it in the fireplace. Also because of the disconnect that establishes the player manufacturer as anything but the drama troupe, the MPAA can decide that I also must have a license to play from the TV manufacturer not just the player manufacture or perhaps I must make sure that every screw in that player is licensed. They could argue that if I buy a player that doesn't break the day the warranty is out, I've bought an unlicensed player because all licensed components break the day the warranty is out. >moseng@mninter.net >I use PGP 6.5.3 -- http://www.underwhelm.org/pgp >-----BEGIN PGP SIGNATURE----- >Version: PGPfreeware 6.5.3 for non-commercial use > >iQA/AwUBOW6RSDik9YADgV7kEQIKrQCfUNlsVOXpuaRKB5S619E60y59cGMAoLbU >avVQFIDJVEhINU+i6Pzx2vUT >=7L09 >-----END PGP SIGNATURE----- Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 03:03:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14444 for dvd-discuss-outgoing; Fri, 14 Jul 2000 03:03:44 -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 DAA14441 for ; Fri, 14 Jul 2000 03:03:42 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6E72X101236 for ; Fri, 14 Jul 2000 10:02:34 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 14 Jul 2000 10:02:33 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <200007121552.LAA26655@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, 12 Jul 2000, Robert S. Thau wrote: > C) Constitutional problems with plaintiff's model > 1) Unlimited patent-like monopoly grant > 2) Grants rights on inventions to authors > 3) [??Crippling effects on fair use] I think the hazyness of the model (there's no way to obtain authorization or to even know whether a particular use of an approved DVD drive might actually be 'unauthorized' etc.) should be discussed as well, noting that the model is at odds with the perception of a reasonable consumer ('for home use'). > D) Plaintiff's model is at odds with intent of Congress We should make the case that since both 1201 and the Ps' auth. model are vague, looking at the original intent is justified. Does reasoning like this work in American courts? >Or something like that. Comments? Nice and even concise for now. ;) Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 03:14:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14599 for dvd-discuss-outgoing; Fri, 14 Jul 2000 03:14:37 -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 DAA14596 for ; Fri, 14 Jul 2000 03:14:35 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6E7DRg02638 for ; Fri, 14 Jul 2000 10:13:27 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 14 Jul 2000 10:13:26 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396CA032.3B6853BD@mninter.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 Wed, 12 Jul 2000, Chris Moseng wrote: >I will restate my position that the plaintiff's authority model is >unknown. You have a theory, I have a theory, they're a little >different--and that's something that should be brought to light. It's no longer quite unknown - do consider their claims in the depositions. It might be possible to win on the basis that the authority model was not known at the time of inception of DeCSS et al. But that won't help if we're 'back in court tomorrow' as you voiced below. > A) Plaintiff's Model - what is it? > i) It is unknown to the court > a) Circumvention is not present when authority is unknown Unless the Ps get their way. Your tautology in c) is precisely what bugs me here. I think you are right to place this point high up since it's a prerequisite for any reasonable defense. > b) The lawsuit is indefensable when authority is unknown > c) 'It is disauthorized because we do not authorize it' is > tautological--the basis for disauthorization must be > clear, lest it be unknowable a priori. > c) Their definition must be broad enough to disauthorize all > "disauthorized players" but narrow enough to allow all > "authorized players" And of course it must be widely known, which it wasn't at least at the time DeCSS was built. >To assert all the theoretical authority models only adds to length >without adding to understanding. Either they put up, or they shut up. >Authority must be well defined, not tautological. I think one alternative should be given, cleanly and concisely with the minimum of hassle. Just to show that we aren't reading 1201 out of existence. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 03:43:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14748 for dvd-discuss-outgoing; Fri, 14 Jul 2000 03:43:53 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA14745 for ; Fri, 14 Jul 2000 03:43:50 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id AAA22529 for ; Fri, 14 Jul 2000 00:42:43 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 00:42:42 -0700 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 (9.0.2911.0) In-Reply-To: <200007140202.WAA10652@soggy-fibers.ai.mit.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau, on Thursday, July 13, 2000 7:03 PM, wrote > >Ummm... the whole point of the MPEG-DPG example was precisely that it >did nothing different than other lossy compression mechanisms. See >also my "darft" on why I feel that the "encryption" and "keys" in CSS >are pretextual veneer on machinery that has another purpose entirely >(the direct pointer is That's why I assumed the hypothetical MPEG-DPG did something different. If not, then what's the point? If it's no different than MPEG-2 (which is not a TPM) then it's not a TPM. CSS was specifically designed as a TPM. The fact that it's not terribly robust or secure does not matter, given that the average user could not break the encryption without help from something such as DeCSS (the average user has many other methods of making copies, but that's not germane to this point). The fact that it took over two years for CSS to be cracked says something, since most of us (including anyone in Hollywood who understood what CSS was) expected it to happen sooner. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 03:46:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA14853 for dvd-discuss-outgoing; Fri, 14 Jul 2000 03:46:49 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA14850 for ; Fri, 14 Jul 2000 03:46:48 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id AAA25494 for ; Fri, 14 Jul 2000 00:45:41 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 00:45:40 -0700 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 (9.0.2911.0) In-Reply-To: <8klsth$5ug$1@blowfish.isaac.cs.berkeley.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner, on Thursday, July 13, 2000 7:12 PM, wrote >Ok, I still like this one! The great thing is that it's really easy >to get licensed to use the CSS keys -- you just go buy a DVD player. >So, this means that I can still have my Linux player, I can still build >my own player to exercise fair use rights, etc.: I just have to buy a >Xing player (or any other player I like, for any OS whatsoever), extract >the keys from it, and install them into my own Linux player. Good. Nice try. ;-) But you aren't licensed to extract or transfer the keys from a player. You have just "deauthorized" yourself. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 04:11:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA15019 for dvd-discuss-outgoing; Fri, 14 Jul 2000 04:11:10 -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 EAA15016 for ; Fri, 14 Jul 2000 04:11:05 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6E89uq09629 for ; Fri, 14 Jul 2000 11:09:56 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 14 Jul 2000 11:09:55 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E3E@c100.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 Thu, 13 Jul 2000, Leland Ray wrote: >Wait, I'm confused...does Mr. Gold mean the title key, or >is the key the machine code that performs the transformation? The title key. They are making no distinction between code and data - both are just software simply because they obviously aren't hardware. >In other words, can the key have a functional component? I >know, this is very different from a cryptographic definition >of key. Huh? I don't see why we cannot have functionality in keys. Granted, we usually don't. Shared secret ciphers are described as multivariate functions which, when one of the parameters is held constant (this is the key), reduce to permutations and are hard to invert even partially without knowledge of the key parameter. There's no essential reason why the function could not actually be a functional which applies a function given as a parameter to some data in some intermediate phase, for instance. This isn't usually done, of course - it makes things too damn complicated. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 04:20:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA15151 for dvd-discuss-outgoing; Fri, 14 Jul 2000 04:20:12 -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 EAA15148 for ; Fri, 14 Jul 2000 04:20:07 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6E8Ixi10838 for ; Fri, 14 Jul 2000 11:18:59 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 14 Jul 2000 11:18:58 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CEB@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 Thu, 13 Jul 2000, Richard Hartman wrote: >But if it is the keys that denote authority, then I can >play those infamous Asian Pirated DVDs on my -licensed- >player with complete authority, no? Of course. In this case they'll use traditional copyright protection. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 04:21:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA15167 for dvd-discuss-outgoing; Fri, 14 Jul 2000 04:21:01 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA15158 for ; Fri, 14 Jul 2000 04:20:59 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id DAA18162 for ; Fri, 14 Jul 2000 03:19:34 -0500 Message-ID: <396ECC2E.56C456@mninter.net> Date: Fri, 14 Jul 2000 03:15:42 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 I've revised my personal CSS authority outline, broadening the scope and taking a default authority definition that aids the defense, arguing the rest are absurd. This way I can argue the defense in terms of 1201 more legitimately while still voicing my complaints about tautological and ill-defined authority. I Circumvention claims hinge on authority II Authority to access a DVD is granted at purchase of legit DVD A. The key indicating authority is contained on legit DVD B. No reservation of authority is communicated at sale 1. No limitations on access device are communicated at sale 2. No limitations on use, besides those already protected by copyright, are communicated at sale 3. No alternative authority model is declared or agreed to at sale C. Conforms to consumer expectation and first sale doctrine D. Conforms to legislative intent of 1201 III All other authorization models yield absurd conclusions or fail to justify the lawsuit A. Under-defined or ill-defined models 1. Impossible to know, hence act upon, a priori 2. Impossible to defend 3. "We do not authorize DeCSS because it is unauthorized" is tautological i. What criteria exist for authorization? ii. What criteria does DeCSS fail that authorized access devices pass? 4. Criteria for authorization must be explicit i. In order to defend a claim to circumvention ii. Else, every disauthorization will require a court order iii. To eliminate consumer confusion 5. Do not conform to consumer understanding/fraudulent B. Models implicating playback devices 1. Do not conform to consumer understanding/fraudulent i. What happens when a playback device is no longer authorized? 2. Lead to anticompetitive tying/control of playback devices and/or copyright misuse i. Copyright holders use CSS scheme to limit the functions of playback devices ii. The CSS scheme hinders non-infringing use a-priori 3. Playback devices cannot distinguish "unauthorized" discs 4. Playback devices can be reverse engineered legitimately 5. Do not conform to legislative intent (insert vetting quote) - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOW7MLDik9YADgV7kEQKSIgCdGzom5mZVBKpidOBI8KFmIQ5+JpwAnj3F 0itlmWIobEPqNGtm6UuXpzeh =8QKt -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 04:24:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA15285 for dvd-discuss-outgoing; Fri, 14 Jul 2000 04:24:21 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA15281 for ; Fri, 14 Jul 2000 04:24:06 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13D0kL-0006k5-00; Fri, 14 Jul 2000 01:22:57 -0700 Date: Fri, 14 Jul 2000 01:22:57 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000714012257.W9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200007140202.WAA10652@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from jtfrog@usa.net on Fri, Jul 14, 2000 at 12:42:42AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > The fact that it took over two years for CSS to be cracked says > something, since most of us (including anyone in Hollywood who understood > what CSS was) expected it to happen sooner. Who was working on it, and what were the incentives? Who might have done it beforehand, and not announced the result to the public? I bet some professional cryptanalysts could have done it in a day or two, given a description of the algorithm. The description of the algorithm was _always_ available to anybody with reverse engineering skills and patience. And there's almost surely some country where DVD-ROM drives are sold and reverse engineering is unquestionably legal (though I wouldn't want to speculate about what country that might be). Professional cryptanalysts and accomplished reverse engineers are very busy people, and they don't necessarily all have the time to do what they might well regard as free work for Hollywood (or, alternately, free work against Hollywood; breaking ciphers can be both). I know that there are a variety of reasons people have been interested in attacking CSS, but very few people even cared what CSS was (unless maybe they were writing very informative books about DVD) until recently. One major source of interest was the rapid progress on an unlicensed open source DVD player. Before this existed, not many people even thought to clamor for information on how CSS works. Now that it does, there are many more people with an incentive to break the thing. I can make up an incredibly weak cryptosystem and use it somewhere, but I can't expect that security experts will just be motivated out of their own curiosity to break it and make public announcements about their discoveries. To a first approximation, they have to get paid, or it has to mean something, to be interesting to them. I could even take this a step further and say that no well-known private sector security researchers even bothered to attack CSS at all these two years, because they had _such_ bigger fish to fry, successfully attacking much more sophisticated systems which were actually being relied upon to provide real security. David Wagner, who's here on this list, kept himself busy some of that time devising attacks on the security of GSM cell phones. Aren't those attacks ultimately a bigger deal than DeCSS? Unlicensed movie players get cleartext of MPEGs, or unlicensed receivers get cleartext of private telephone conversations? There are all sorts of terribly weak security systems out there which have never been broken at all because they're just not interesting enough and just not used to secure anything important enough. -- 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 Jul 14 10:30:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA17628 for dvd-discuss-outgoing; Fri, 14 Jul 2000 10:30:58 -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 KAA17625 for ; Fri, 14 Jul 2000 10:30:58 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id KAA23380 for ; Fri, 14 Jul 2000 10:29:47 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id KAA17034 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 10:29:47 -0400 Date: Fri, 14 Jul 2000 10:29:47 -0400 Message-Id: <200007141429.KAA17034@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > I've revised my personal CSS authority outline, broadening the scope and > taking a default authority definition that aids the defense, arguing the > rest are absurd. OK, but I still think that it's a good idea to present an alternative interpretation of the "authority of the copyright owner" language in the law. It's important to show that our interpretation of the law does allow the copyright holders meaningful ways to protect their work (with examples!), so Kaplan doesn't get the impression that we're trying to read the law out of existence. Also, you might want to take note of one of the ways that the plaintiffs have avoided *appearing* to make claims which even Kaplan would recognize as absurd. They don't actually say: > 3. "We do not authorize DeCSS because it is unauthorized" Instead, what they say is "DeCSS is circumvention because *it is decryption* and it is unauthorized". This is, for instance, exactly the line that Gold took in the preliminary injunction hearing, and Kaplan took it hook, line, and sinker. To reduce the "decryption = circumvention" claim to the obvious circularity you've given above, we've got to take the decryption out of the picture. Which shouldn't be too hard, if we note two facts: first off, there is no statutory basis for the claim that either effective access control or circumvention has to involve a cryptographic process; secondly, the encryption in CSS is wholly pretextual. Some detailed argument along these lines, from my "reductio ad absurdam" paper: The statute's definitions of ``effective access control'' and circumvention do not require any particular form of the technical measures which they cover. The definition of ``effective access control'' states simply that an effective access control must ``require the application of information, or a process or a treatment, with the authority of the copyright ower, to gain access to the work''; there is no restriction on the technical means by which this requirement is met. And while the definition of circumvention discusses descrambling and decryption, it also encompasses any other technique which allows a user to ``avoid, bypass, remove, deactive, or impair a technological measure'', again with no restriction to particular technical means. Also, the plaintiffs use the terms ``decrypt'' and ``descramble'' interchangably, but standard rules of statutory construction tell us that different words apply to different things, and the range of technological measures which may be described as ``scrambling'' is so broad that it is no restriction in practice. For instance, we have already mentioned the MPEG compression process which is used on DVD video even without CSS. This process is intended solely to compress the data, with no pretense of access control. Yet, the compression process involves throwing away some of the data and thoroughly scrambling the rest, and intensive computation is required to ``descramble'' it back to ordinary digital video. In other words, the plaintiffs are interpreting the ``authority of the copyright owner'' language in the definition of ``effective access control'' to mean that they give out licenses for it --- which leaves as the only {\em other} requirement for a technological measure to be that it be required to permit access to the work; {\em any} such process could be an ``effective access control'', because its function could be described as ``descrambling''. But it may also be noted, even if there were some sort of requirement for encryption in the statute, that requirement could conceivably be met by adding irrelevant, pretextual encryption to a process whose real purpose and focus was entirely different. What makes that an interesting point is that the components of the CSS system which are described by the plaintiffs as the encryption are not being used as encryption systems generally are; furthermore, if someone would try to use them that way, they would work {\em terribly}, providing no effective security at all. To explain this, let us briefly discuss what encryption is. In "Privacy on the Line", a book by Whitfield Diffie (coinventor of public-key cryptography) and Dr. Susan Landau, now of Sun Microsystems, define it as follows. \begin{quotation} We shall describe cryptography for the moment only by what it does: a transformation of a message that makes the message incomprehensible to anyone who is not in posession of secret information that is needed to restore the message to its normal *plaintext* or *cleartext* form. The secret information is called the *key*, and its function is very similar to the function of a door key in a lock: it unlocks the message so that the recipient can read it. \end{quotation} A few things follow from this definition: the key must be physically separate from the work it protects; if not, then anyone who has the message has the key as well, so its contents are in no way protected from unauthorized recipients. Likewise, it must be something whose distribution is ordinarily limited to authorized recipients --- if the "key" is broadcast to the public at large, then any unauthorized recipient can obtain it at will, and once again, there is no real security[2]. And of course, it must be difficult to obtain the plaintext of the message without the key. With these definitions in hand, let us return to considering CSS. With regard to effectiveness, it suffices to refer to the declaration of Frank Andrew Stevenson, in which he exhibits a program that will recover the key from a ``scrambled'' piece of DVD video data (a so-called \texttt{.vob} file) in about a tenth of a second on a standard PC, thereby laying bare the data in the ``encrypted'' file. The weakest real encryption in common use (a strong symmetric algorithm with 40-bit keys) takes more than a week on a standard PC, but even this can be broken in under a minute with special-purpose hardware. Security experts commonly describe 40-bit encryption as inadequate for serious use; algorithms for performing that encryption are freely available without any licensing requirments in standard textbooks. The CSS ``encryption'', simply evaluated on its merits, is laughable. But there is a more interesting difference between CSS and real cryptography, in the nature of keys. Recall that the whole point of having a key is that it should only be accessible to someone authorized to read the message. Now, the CSS specification has several numbers in it which are described as ``keys''. However, none of these is given only to particular, authorized individuals. Most of the so-called keys are physically stamped into the same disc as the video they supposedly protect --- so anyone in physical possession of the video is necessarily in possession of the keys as well. The main exceptions are so-called ``player keys'', which are embedded in the players, as mandatory inputs to some of the CSS functions. These are embedded in the players, which are sold to anyone and everyone at Best Buy, whether or not they are authorized to view any particular DVD. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 11:32:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17892 for dvd-discuss-outgoing; Fri, 14 Jul 2000 11:32:01 -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 LAA17889 for ; Fri, 14 Jul 2000 11:32:00 -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:2.21) with ESMTP id LAA03063 for ; Fri, 14 Jul 2000 11:30:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA02934; Fri, 14 Jul 2000 11:30:54 -0400 (EDT) Date: Fri, 14 Jul 2000 11:30:54 -0400 (EDT) Message-Id: <200007141530.LAA02934@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS In-Reply-To: <396E7388.E3E997C9@mninter.net> References: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> <200007131804.OAA18629@soggy-fibers.ai.mit.edu> <200007140153.VAA08036@soggy-fibers.ai.mit.edu> <396E7388.E3E997C9@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > > .... The result might be that the next time they do > > one of these technologies, they are just very careful to print on the > > box of each disc, "For use only in licensed WimpyDisc equipment", and > > they have a court precedent, due to the "victory", saying that *as > > long as such notice is provided*, the WimpyDisc equivalent to DeCSS > > *is* circumvention. ... > > I'm not so sure... Asserting anti-competitive tying would be trivial > with such a pronouncement. Why do you think they're being so circumspect > about CSS and the DVDCCA? Well, they have a tying arrangement, and they're trying to minimize exposure. That's just common sense. But even if they have to expose it a little more, that's hardly the end of the world for them. Even presuming a lawsuit and an eventual loss (and there's no such thing as a lawsuit with a certain outcome), they still get the benefits of the tying arrangement for as long as they can keep it in the courts, which might be a decade. Whereas if they abandon the arrangement immediately, fearing exposure, they lose all those benefits, and all they get back is the cost of defending the suit --- lawyer's fees (for those lawyers that they didn't have on retainer anyway), and fines (probably less than the lawyer's fees, by the time it's over). Which looks like a no-brainer to me, from their perspective: print the magic words, and hope for the best --- even a worst-case outcome beats the alternative. > If anti-trust weren't an issue, they would have done it right the first > time. Well, you still haven't convinced me in any case that 1201(a) means that the copyright holders get to define what "authority" means *so long as they notify interested parties of their definition*. Could you remind me again how your reading of the statute leads to that conclusion? rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 11:52:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18030 for dvd-discuss-outgoing; Fri, 14 Jul 2000 11:52:01 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA18027 for ; Fri, 14 Jul 2000 11:51:58 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id KAA20394 for ; Fri, 14 Jul 2000 10:50:34 -0500 Message-ID: <396F35D9.3E6C1855@mninter.net> Date: Fri, 14 Jul 2000 10:46:33 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <200007141429.KAA17034@vvr09.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: > OK, but I still think that it's a good idea to present an alternative > interpretation of the "authority of the copyright owner" language in > the law. It's important to show that our interpretation of the law > does allow the copyright holders meaningful ways to protect their > work (with examples!), so Kaplan doesn't get the impression that we're > trying to read the law out of existence. I absolutely agree. I think section II in my outline would be a fine place to describe other systems such as satellite and Divx authorization schemes that keep the key separate and condition its availability on authorization to access. IIa, IIc and IId would all work. > Also, you might want to take note of one of the ways that > the plaintiffs have avoided *appearing* to make claims which even > Kaplan would recognize as absurd. They don't actually say: > > > 3. "We do not authorize DeCSS because it is unauthorized" > > Instead, what they say is "DeCSS is circumvention because *it is > decryption* and it is unauthorized". This is, for instance, exactly > the line that Gold took in the preliminary injunction hearing, and > Kaplan took it hook, line, and sinker. To reduce the "decryption = > circumvention" claim to the obvious circularity you've given above, > we've got to take the decryption out of the picture. Thanks for bringing back the actual position that resulted in the cirularity. I knew it was there, but all I could remember was that it was circular. Mr. Valenti used it, too, in his deposition. You can be sure that the actual claim will be analyzed so the header will make more sense. In any case, I certainly buy the argument that because the keys accompany the disc, authorization is implicit. Asserting that perhaps CSS is a TPM, except everyone gets a key, does not read the law out of existance; it just reads CSS out of the ballpark of circumvention because everyone with a disc has authorization. That's my aim. Fortunately for us all, it's my only aim, and that's why I'm off on my own treasure find. I can't speak with certainty about most of the other issues. Ideally there will be a synthesis--I've never done this before. :) -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 11:57:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18120 for dvd-discuss-outgoing; Fri, 14 Jul 2000 11:57:56 -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 LAA18117 for ; Fri, 14 Jul 2000 11:57:55 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id LAA07497 for ; Fri, 14 Jul 2000 11:56:49 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id LAA17119 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 11:56:49 -0400 Date: Fri, 14 Jul 2000 11:56:49 -0400 Message-Id: <200007141556.LAA17119@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I have little doubt that this is the aim of the plainiffs, to create a > movie-theater like distribution system that makes everyone a theater > owner rather than a citizen with fair use rights. It also sounds more than a little like the movie-theater arrangement which got busted up in U.S. v. Paramount --- the "theaters" (players) aren't actually owned by the studios, but the studios could have enough control over what they do, via the operation of mechanisms like region coding that are mandated in the CSS license agreement and its successors, that the effects on the public good are effectively the same. Which should be the argument in my reductio ad absurdam paper on effects of a ruling favorable to the plaintiffs, but right now that whole section reads "TBD" --- there's just a little bit at the end on the falsity of their "anyone can license CSS" claims. (I note that anyone can license CSS only subject to certain terms, including region coding, which have nothing to do with access control or copy control, and which many might find obnoxious --- witness the market for region-uncontrolled players which is developing in Europe despite the best efforts of the DVDCCA). There still is an old Paramount theater in Boston, BTW. It hasn't been open in years, and last time I was nearby, I think someone had started to take down some of the signage, but it will be a while before anyone gets rid of the studio logo carved into the brick. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:03:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18192 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:03:19 -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 MAA18189 for ; Fri, 14 Jul 2000 12:03:13 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CL99>; Fri, 14 Jul 2000 09:02:13 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CF2@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Amicus trial brief outline & RAS Date: Fri, 14 Jul 2000 09:02:03 -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: Sampo A Syreeni [mailto:ssyreeni@cc.helsinki.fi] ... > >Authority must be well defined, not tautological. > > I think one alternative should be given, cleanly and > concisely with the > minimum of hassle. Just to show that we aren't reading 1201 out of > existence. > That example would be Divx where authority was granted by purchasing keys separately. It died in the marketplace, but was sound re. 1201. -- -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 Jul 14 12:15:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18336 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:15:33 -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 MAA18333 for ; Fri, 14 Jul 2000 12:15:32 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id MAA10509 for ; Fri, 14 Jul 2000 12:14:22 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id MAA17139 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 12:14:22 -0400 Date: Fri, 14 Jul 2000 12:14:22 -0400 Message-Id: <200007141614.MAA17139@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > In any case, I certainly buy the argument that because the keys > accompany the disc, authorization is implicit. Asserting that perhaps > CSS is a TPM, except everyone gets a key, does not read the law out of > existance; it just reads CSS out of the ballpark of circumvention > because everyone with a disc has authorization. That's my aim. Hmmm... that sounds an awful lot like a claim that they keep making --- that the purpose of CSS is to keep the movie data away from people who don't have the disc. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:15:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18344 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:15:42 -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 MAA18341 for ; Fri, 14 Jul 2000 12:15:41 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CMAC>; Fri, 14 Jul 2000 09:14:34 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CF3@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 09:14:24 -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: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Thursday, July 13, 2000 7:12 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > Jim Taylor wrote: > > But you are not licensed to use the CSS keys. [...] > > Ahh, ok. Maybe now I am understanding better your preferred reading. > It seems that the authority model you are suggesting is that you get > authority to use the CSS keys by buying a DVD player, or somesuch. > If you use those keys without that authority, you violate the DMCA. > Is that the idea? > > Ok, I still like this one! The great thing is that it's really easy > to get licensed to use the CSS keys -- you just go buy a DVD player. > So, this means that I can still have my Linux player, I can > still build > my own player to exercise fair use rights, etc.: I just have to buy a > Xing player (or any other player I like, for any OS > whatsoever), extract > the keys from it, and install them into my own Linux player. Good. > > Actually, this looks like it would be a pretty fair > compromise all around. > The copyright holders would get to have the principle "if you haven't > payed for the rights, you can't use it" protected by law; the > rest of us > would keep to have our fair use rights. > > Or did I misunderstand your suggested DMCA interpretation > again in some > different way this time? > Whether you misunderstood what he was saying or not, what you came up with seems perfectly valid -- nay superb -- as an argument. Are they saying that we must have legitimately aquired the keys or the player? If it is the keys, you are correct: buy a player, use it's keys as needed. If it is the player itself then they not only have a severely flawed authority model, but the TPM model they are using becomes flawed as well. -- -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 Jul 14 12:17:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18456 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:17:02 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18453 for ; Fri, 14 Jul 2000 12:16:59 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA23517 for ; Fri, 14 Jul 2000 11:15:36 -0500 Message-ID: <396F3BAE.7DDC06E4@mninter.net> Date: Fri, 14 Jul 2000 11:11:26 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS References: <5A8391CA2D9ED311AFAA080009D982B10B1CE0@mail2.onetouch.com> <200007131804.OAA18629@soggy-fibers.ai.mit.edu> <200007140153.VAA08036@soggy-fibers.ai.mit.edu> <396E7388.E3E997C9@mninter.net> <200007141530.LAA02934@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: > But even if they have to expose it a little more, that's hardly the > end of the world for them. Even presuming a lawsuit and an eventual > loss (and there's no such thing as a lawsuit with a certain outcome), > they still get the benefits of the tying arrangement for as long as > they can keep it in the courts, which might be a decade. I don't think that's true in the case of misuse of copyright--the remedy is loss of copyright until the misuse is remedied. I feel comfortable that this would be the charge if a copyright holder attempted to enforce technologically a right not granted by copyright upon the entire public. Would the movie studios risk it? Perhaps misuse of copyright is a chimera, in which case I could be entirely wrong, but it sounds pretty reasonable to me. There are rights a copyright holder does not have, and to assert them through technological means and an EULA would be pretty egregious. > Which looks like a no-brainer to me, from their perspective: print > the magic words, and hope for the best --- even a worst-case outcome > beats the alternative. Well, except in the above case. If the above case doesn't exist, you may have a point. And at a certain point, we're not fighting the movie studios to stop their CEOs from getting unbelievably rich off the labors of the artists--I think the best way to do that is in the marketplace, not lawsuits. So they'll "get away with it" for a while. If movie studios take advantage of the American people, the American people have a remedy coming to them; and I don't think they would "get away with it" for long. > Well, you still haven't convinced me in any case that 1201(a) means > that the copyright holders get to define what "authority" means *so > long as they notify interested parties of their definition*. Could > you remind me again how your reading of the statute leads to that > conclusion? I admit, it is very Kaplanesque. The definitions in (3)(A) and (B) are open ended. The plain language says to me that I as a copyright holder can require the application of information, a process or a treatment to access my work, and simply "withhold authorization" to anyone I deem unfit. That sounds similar to playing back an MP3 or letting the photons of a book hit my retina and get turned into electrochemical signals. The only thing left to make my interpretation stick is telling all who wish access to my work the terms upon which they are granted authorization. It's EULA time. I'm not saying I'm necessarily reading the law as it was meant, but that's definitely what it says. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:17:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18467 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:17:41 -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 MAA18461 for ; Fri, 14 Jul 2000 12:17:37 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CMAH>; Fri, 14 Jul 2000 09:16:34 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CF4@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 09:16:32 -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 Taylor [mailto:jtfrog@usa.net] > Sent: Friday, July 14, 2000 12:46 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > David A. Wagner, on Thursday, July 13, 2000 7:12 PM, wrote > > >Ok, I still like this one! The great thing is that it's really easy > >to get licensed to use the CSS keys -- you just go buy a DVD player. > >So, this means that I can still have my Linux player, I can > still build > >my own player to exercise fair use rights, etc.: I just have to buy a > >Xing player (or any other player I like, for any OS > whatsoever), extract > >the keys from it, and install them into my own Linux player. Good. > > Nice try. ;-) But you aren't licensed to extract or > transfer the keys from > a player. You have just "deauthorized" yourself. > > Wouldn't reading the keys from the player I just bought and installing them in the Linux player merely be "space shifting" of the keys? Or is there something in the DVD player sale that speficially states "the keys sold must be used only in the hardware sold"? -- -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 Jul 14 12:22:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18538 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:22:37 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18535 for ; Fri, 14 Jul 2000 12:22:35 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA24125 for ; Fri, 14 Jul 2000 11:21:13 -0500 Message-ID: <396F3CFB.C623D341@mninter.net> Date: Fri, 14 Jul 2000 11:16:59 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <5A8391CA2D9ED311AFAA080009D982B10B1CF4@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 > Wouldn't reading the keys from the player I just bought > and installing them in the Linux player merely be "space > shifting" of the keys? Or is there something in the > DVD player sale that speficially states "the keys sold > must be used only in the hardware sold"? > > -- > -Richard M. Hartman > hartman@onetouch.com Well, space shifing is more of a copyright idea, and the keys are not copyrightable. They are a trade secret, and the trade secret is "protected" with the anti-reverse engineering clauses in the EULAs. Not very well protected, because the trade secret is not secret anymore. Oh well. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:25:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18603 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:25:12 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18599 for ; Fri, 14 Jul 2000 12:25:11 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id MAA31331 for ; Fri, 14 Jul 2000 12:24:06 -0400 Date: Fri, 14 Jul 2000 12:24:06 -0400 (EDT) From: Ole Craig To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CF4@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 07/14/00 at 09:16, 'twas brillig and Richard Hartman scrobe: > > Wouldn't reading the keys from the player I just bought > and installing them in the Linux player merely be "space > shifting" of the keys? Or is there something in the > DVD player sale that speficially states "the keys sold > must be used only in the hardware sold"? No, but even if there were.. "Hey, the ``hardware sold'' is my DVD-drive! No problem, it's the DVD drive on my linux box." Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:38:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18719 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:38:53 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18716 for ; Fri, 14 Jul 2000 12:38:50 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA18048 for ; Fri, 14 Jul 2000 09:37:42 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma017400; Fri, 14 Jul 00 09:36:46 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA09047; Fri, 14 Jul 2000 10:36:44 -0600 From: "John Zulauf" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 10:39:18 -0600 Message-ID: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 >Jim Taylor wrote: > But you are not licensed to use the CSS keys. This strikes me as a more important point to the contrary. I'll look at it several different ways below. > But you are not licensed to use the CSS keys. That's right, but why do I have to be. The keys (which are simply numbers) are not patented ("I'd like a patent on 400 40bit numbers please"), copyright protected or protected by anything other than their now-moot trade secret status. Once the numbers are in the clear the trade secret is gone (except maybe in CA and ONLY if one can prove they were RE'd and not found through exhaustive search -- which for 40bit isn't unachievable, or rendered moot by the 2^16 key search attack). The keys were transmitted as trade secrets to the DVD licensee's -- they have the license. They have to protect them. Why do I? With that approach we'd have a very different society. Can you see Woodward and Bernstein, "uh Deep Throat, these are private government documents -- we can't print anything about these..." > But you are not licensed to use the CSS keys. The DVD-CAA license is in effect "we'll tell you a secret if you promise not to tell, and if use the secret only in certain ways." They didn't tell me the secret (for one thing it's no longer secret) and I never promised not to tell and I certainly never agreed to behave only is certain ways regarding that now-dead secret. > But you are not licensed to use the CSS keys. You know this case would be a very different one if every purchaser of a DVD-player and disc had been required to sign an agreement giving consent to it's restrictions. It would probably be in anti-trust court for one thing (imagine Goodyear building a toll road without booths and claim that buying Goodyear tires comprised the toll), and not a popular format (like Divx) for another. You can't fail to impose an unpopular license reap the benefits of not impose the license in terms of popularity and profit, and then expect to enforce too. (Do I smell a class-action suit?) > But you are not licensed to use the CSS keys. Look at this sentence carefully. I know you wrote it concerning DeCSS, but think of it in terms of the licensed-player. The movie companies has a license with the DVDCAA. The DVDCAA has a license with the player manufacturers. How does the end-user receive a license? What are it's terms, conditions, limitations, and restrictions. When does the the user agree to these? Purchase of the player grants you NO license, as NO license is signed or agreed or even shown you ("initial here please to indicate you've read the terms of the license" ). Even the software player click license disclaims you gaining any rights by installing the program. You don't agree to NOT put a video stabilizer on the outputs (correctly the image defects introduced by Macrovision). You don't agree to not hook a logic analyzer or AtoD up to the CSS, MPEG decode output, DAC input or outputs in order to access the keys or get a cleartext digital signal. You've agreed to nothing of the sort (you'd of course void the warranty -- that's a "reasonable man" arguement). No one has told you you can't monkey with the player to your heart's content -- build it into a kinetic sculpture -- put lot's of needless flashing lights on it to make it "look cool" -- replace the power supply so that it will run on your boat -- sew it into a Dune-like video still-suit -- drop it off your roof for fun! This is because of the fact you are not licensed to use the CSS keys. You're simply given them. > That's the plaintiffs' point. > I assume they'll make the key analogy -- that you can't break into a house > just because you have the keys. Sure. It's their arguement, but what is the true analogy? How would a "reasonable man" -- say, NOT Jack Valenti -- see it. Let's accept their definition of the player as the keys and the cleartext content as the house. I go to Circuit and I buy 2 DVD's and a DVD player. The sales clerk sales "there, all yours." I signed no agreement, I don't have a behavioral monitor attached, I just walk out the door, no one arrests me for shoplifting -- I paid for the stuff. (Compare that to the pile of paper I signed when I got a Divx player). I get home, install my DVD player and press play. No one and nothing challenges my authority, I don't have to enter a password, hook up the player to the phoneline, insert a smart card or attach a dongle. Nothing is required of me but my possession of player and disc. I can play this disk all night if I want to and for the rest of my life if I want (unless the kids scratch it). What does the "reasonable man" think. This (the disc) is my house and the this (the player) is my key. I own the house. What would make me believe I can't get copies of my own keys or freely access the contents of my own house. Nobody told me I couldn't at point of sale. To quote you, "But you are not licensed to use the CSS keys." That's right. I was sold them as part of the player I just bought. I didn't license anything. Now, I decide I don't like how awkward my keys are (they just open the dog door or the window or something). There is no reason I cant rekey my whole house, right? Clearly this is a different story with something like Divx. Divx is more like a motel room than a house. It's less expensive by far than a house but I can't change the locks or have unlimited use without incurring addtional cost. Now if the P's want to argue that using DeCSS to play a DVD is like breaking into a motel room and squatting there -- I don't think that flys. I'm clearly not gaining access (using a room) I didn't have before. I just don't have to climb in the dog to gain that access. > I don't think so. The CSS keys, along with the CSS authentication algorithm > and decryption algorithm, compose a TPM. Two nits. One that's "comprise a TPM" -- second how can a TPM with a fixed set of keys be considered effective in a 1201 sense. Also the combination pretextual as it always works, requires no access time authorization from the copyright holder, or other external information. It's like a safe with the combination engraved on the door or the key welded into the lock. If you have access to the safe you have the access to the contents. That's not a safe. That's a cabinet with a fancy clock-work (but non-locking) handle. Again compare with Divx -- that's a safe. Physical access != content access (with out paying the toll). > If your hypothetical DeCSS variant > were intended primarily to circumvent the TPM, Why do you use the P's "descambling which is circumvention" language? On what basis do you claim DeCSS is "circumvention" in the legal sense of the word? This kind of unwarranted conclusion must be challenged both on fact and law. First, clearly, not all descrambling is circumvention else how could a licensed CSS descrambler be built with out breaking 1201. Second, just HOW is DeCSS a circumvention of CSS? How does a "circumvention" differ from any "implementation?" I think the burden is on the P's here to show this difference. One cannot simply claim in Python-esque fashion -- "She's a witch, burn her!!!!" If they cannot demonstrate the difference between an implementation and a circumvention with some bright line test -- "How do you **know** she's a witch?" They cannot simple claiming that DeCSS is one because they say so. "She turned me in a newt!" -- isn't legal convincing without some demonstration of harm -- "Uh, I got better..." The P's claim DeCSS will harm them because it is circumvention and it is circumvention because it will harm them. A circular argument is not sufficient proof, surely. I would think the burden of proof must be higher than "if she weighs as much as a duck..." Does the Win32 open source WINE interface "circumvent" or "implement" Windows? Does an open source 3DES engine "circumvent" or "implement" DES? They may claim that DeCSS is circumvention because the software implements CSS without requiring the same onerous restrictions found in the DVD-CAA license terms (Macrovision, no cleartext copy, no fair use access, privacy of the keys). These however are not a part of CSS but only required by the CSS **license** and not needed strictly to implement CSS. DeCSS is a full implementation of CSS (or it wouldn't work) but not of the license enforced use restrictions. All the things MPAA wants to protect are not a part of CSS (not even region coding) but enforced by contractual terms of the CSS license and imposed on the licensees based on the DVD-CAA's monopoly power. Perhaps we are circumventing the license-based use restrictions, but then again, we never signed the license and a license isn't a TPM. Back to circumvention. This is the act of allowing access when the copyright holder has not authorized you to do so. The first problem is what the copyright holder has told you they authorize (and don't). The disc says "private use only" -- okay, I'm alone with my Penguin-Pentium. The disc is not a pay-per-view disc. Okay, I can run it anytime I want. That's all I know, and all I agreed to. So if I abide by those terms, I am authorized to view the disc. This is a good-faith, reasonable man view. The seller cannot leap out from the closet and yell, "NO! WAIT! There's more!" The transaction has been completed. Sadly I find I cannot view the disc directly from my DVD drive. My MPEG player can't read the format. So I copy and reformat (from cypher-text VOB to cleartext VOB) the movie, and wham -- now I can play my movie. I have implemented a CSS compliant (else the decryption wouldn't work) process to view my movie within the bound of the authority granted to me by the copyright holder, the constitution, fair use, etc. The CSS process I have implemented is not compliant with the DVD-CAA license, but I'm not a DVD-CAA licensee and therefore not subject to the terms of that license. Remember that license is in effect "we'll tell you a secret if you promise not to tell." They didn't tell me the secret (for one thing it's no longer secret) and I never promised not to tell. How have I circumvented? Do I have access to more viewing opportunities than with CSS. No I have access to the exactly the same content? Have I violated the bounds of the authority granted me by my agreements at point of sale (or lack thereof) and license terms (on the case of the DVD for example)? No. Have I exceed my fair use rights under copyright law? No. There has been no violation of authority, no copyright violation -- no circumvention. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:40:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18799 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:40:14 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18796 for ; Fri, 14 Jul 2000 12:40:13 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6EGe2u29587; Fri, 14 Jul 2000 12:40:02 -0400 Date: Fri, 14 Jul 2000 12:40:02 -0400 Message-Id: <200007141640.e6EGe2u29587@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: > > In any case, I certainly buy the argument that because the keys > > accompany the disc, authorization is implicit. Asserting that perhaps > > CSS is a TPM, except everyone gets a key, does not read the law out of > > existance; it just reads CSS out of the ballpark of circumvention > > because everyone with a disc has authorization. That's my aim. > >Hmmm... that sounds an awful lot like a claim that they keep making --- >that the purpose of CSS is to keep the movie data away from people who >don't have the disc. Have? I see so if I have a copied disc I'm fine? So they only want to stop discless play. Or at least that's all they expect is possible with CSS, the prevention of discless play. Where could we take this? >rst Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 12:42:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18862 for dvd-discuss-outgoing; Fri, 14 Jul 2000 12:42:44 -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 MAA18859 for ; Fri, 14 Jul 2000 12:42:43 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id MAA15524 for ; Fri, 14 Jul 2000 12:41:38 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id MAA17155 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 12:41:37 -0400 Date: Fri, 14 Jul 2000 12:41:37 -0400 Message-Id: <200007141641.MAA17155@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I admit, it is very Kaplanesque. The definitions in (3)(A) and (B) are > open ended. The plain language says to me that I as a copyright holder > can require the application of information, a process or a treatment to > access my work, and simply "withhold authorization" to anyone I deem > unfit. Really? I'll admit it's bad English, but that's not what it says to me, and it's not what it said to the LOC's general counsel in the Stanford hearing, until the MPAA's Dean Marks started blowing smoke. In his own words: 6 It strikes me that what we are 7 describing is perhaps a copying control device in 8 access control clothing. In other words, you've got 9 a device that controls access to a work, but not in 10 the way that, certainly before this rulemaking 11 began, I thought we were talking about. We were 12 talking about access control devices. 13 In other words, I assumed -- naively, 14 perhaps -- that a technological measure that 15 controls access to a work, the purpose of that is to 16 make sure that authorized users and only authorized 17 users are getting access to the works. So if I paid 18 the price to the copyright owner otherwise be able 19 to use that work, then I'm entitled to use it. 20 And if he somehow gets access to it by 21 circumventing encryption or passwords, or whatever, 22 then she's in trouble because she's not an 23 authorized user. I'm not in trouble because I am. 24 That's got nothing to do, as far as I can tell, with 25 what you're talking about. And it's not what it says to Mr. Marks either, come to think of it --- Marks relies explicitly and repeatedly on the "unauthorized *and* decryption" line which we've both dismissed as a smokescreen, but it's one which is concealing deep problems with his reading of the law. That reading is also inconsistent with Congress's own exegesis of what the law means, for the benefit of its members (the conference committee report), and the expressed intent of the legislators, and it also may have Constitutional problems, as I discuss in my "reductio" darft --- granting exclusive rights in an invention to an author (not an inventor) for an unlimited term. But for more on that, see the paper. One last note --- I see how your reading allows a copyright holder to "withhold authorization" at a whim. But then, whence the requirement that the public be notified of the terms on which authorization is given? And might they not meet that obligation by simply describing the system publically in general terms, as they have, and telling interested parties where to go to apply for a license? rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 13:09:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19020 for dvd-discuss-outgoing; Fri, 14 Jul 2000 13:09:23 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA19017 for ; Fri, 14 Jul 2000 13:09:22 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id NAA32601 for ; Fri, 14 Jul 2000 13:08:17 -0400 Date: Fri, 14 Jul 2000 13:08:17 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.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 07/14/00 at 10:39, 'twas brillig and John Zulauf scrobe: > They may claim that DeCSS is circumvention because the software implements > CSS without requiring the same onerous restrictions found in the DVD-CAA > license terms (Macrovision, no cleartext copy, no fair use access, privacy > of the keys). These however are not a part of CSS but only required by the > CSS **license** and not needed strictly to implement CSS. DeCSS is a full > implementation of CSS (or it wouldn't work) but not of the license enforced > use restrictions. All the things MPAA wants to protect are not a part of > CSS (not even region coding) but enforced by contractual terms of the CSS > license and imposed on the licensees based on the DVD-CAA's monopoly power. > Perhaps we are circumventing the license-based use restrictions, but then > again, we never signed the license and a license isn't a TPM. John - That was an excellent rant. I particularly wanted to lift this paragraph out because it's an excellent statement of a point and linkage I think we haven't seen concisely made before. Thanks. Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 13:49:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA19725 for dvd-discuss-outgoing; Fri, 14 Jul 2000 13:49:03 -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 NAA19722 for ; Fri, 14 Jul 2000 13:49:02 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id NAA29397 for ; Fri, 14 Jul 2000 13:47:56 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id NAA17227 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 13:47:55 -0400 Date: Fri, 14 Jul 2000 13:47:55 -0400 Message-Id: <200007141747.NAA17227@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf writes: > Purchase of the player grants you NO license, as NO license is signed or > agreed or even shown you ("initial here please to indicate you've read the > terms of the license" ). Even the software player click license disclaims > you gaining any rights by installing the program. You don't agree to NOT > put a video stabilizer on the outputs (correctly the image defects > introduced by Macrovision). You don't agree to not hook a logic analyzer or > AtoD up to the CSS, MPEG decode output, DAC input or outputs in order to > access the keys or get a cleartext digital signal. You've agreed to nothing > of the sort (you'd of course void the warranty -- that's a "reasonable man" > arguement). No one has told you you can't monkey with the player to your > heart's content -- build it into a kinetic sculpture -- put lot's of > needless flashing lights on it to make it "look cool" -- replace the power > supply so that it will run on your boat -- sew it into a Dune-like video > still-suit -- drop it off your roof for fun! This is because of the fact > you are not licensed to use the CSS keys. You're simply given them. One brief note from a second read of this *excellent* rant. Remember, Dean Marks is happy to concede that the home viewer has entered into no contract with the copyright owners or any of their agents. But he still says that use of the CSS keys is "circumvention" because it constitutes "decryption" without "the authority of the copyright owner". So, you're relying implicitly here on a point that you make later on --- that the encryption in CSS is pretextual. Once again, very well done. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 14:08:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19954 for dvd-discuss-outgoing; Fri, 14 Jul 2000 14:08:48 -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 OAA19951 for ; Fri, 14 Jul 2000 14:08:47 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CMHR>; Fri, 14 Jul 2000 11:07:48 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CF8@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 11:07:42 -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: Ole Craig [mailto:olc@cs.umass.edu] > Sent: Friday, July 14, 2000 9:24 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > On 07/14/00 at 09:16, 'twas brillig and Richard Hartman scrobe: > > > > Wouldn't reading the keys from the player I just bought > > and installing them in the Linux player merely be "space > > shifting" of the keys? Or is there something in the > > DVD player sale that speficially states "the keys sold > > must be used only in the hardware sold"? > > No, but even if there were.. "Hey, the ``hardware sold'' is my > DVD-drive! No problem, it's the DVD drive on my linux box." > So ... you've actually paid for the use of every aspect of the system including the hardware and keys ... oh, wait, you'd still need to have a paid-for player key (which is what I thought we were talking about ) ... but you got one of those w/ the player that (usually) comes with your drive ... but that player won't run under Linux, so where is the legality preventing you from making use of keys that you legitimately own in a "space shifted" (read "OS shifted") manner? As far as I can tell, you're authorized in all places that you need to be authorized. The only thing missing is that your Linux player is not -licensed-. But if authorization attaches to legitimate ownership of the keys, you've got that! -- -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 Jul 14 14:45:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20196 for dvd-discuss-outgoing; Fri, 14 Jul 2000 14:45:22 -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 OAA20193 for ; Fri, 14 Jul 2000 14:45:18 -0400 Message-ID: <20000714184337.2135.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 14 Jul 2000 11:43:37 PDT Date: Fri, 14 Jul 2000 11:43:37 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Timing question (was: Amicus trial brief outline & RAS) 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 OK. Since you are in contact with the defense team, you are in the best position to assess what would be most helpful to them. I'm wondering (as I'm sure others are) what to expect from the trial: How long will it last? What order do things happen in? Is it a bench trial (or will there be a jury)? Who will the witnesses be? How long after closings does it typically take to get the decision? --- Wendy Seltzer wrote: > While the outlines being posted have some great points, I'd suggest > we hold off drafting any formal papers for the moment. We don't want > to annoy Kaplan, who has already gotten a lot of amicus > submissions, and we wouldn't want to interfere with the defense > team's strategies. > > Outlines, analyses, and bullet points can still be very helpful to > the defense team, and I've been trying to pass along highlights > without overwhelming Ed. I hope we will be getting transcripts > and reports shortly after the daily proceedings so our many eyes > can get to work spotting bugs in the plaintiffs' presentation. > > Then, if it looks as though Kaplan will be receptive to a post-trial > brief, we'll be in a better position to tie arguments to the > evidence that has been presented at trial. > > Thanks for all the great work. > --Wendy __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:01:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20440 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:01:35 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20437 for ; Fri, 14 Jul 2000 15:01:32 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PRMD>; Fri, 14 Jul 2000 15:04:56 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E43@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 15:04:53 -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 want to second and third those who have complimented you on your excellent statement. Suppose that the P's argue that CSS is BOTH the code to transform, and the license agreement. How would that affect your argument? -----Original Message----- From: John Zulauf [mailto:john.zulauf@ia.nsc.com] Sent: Friday, July 14, 2000 12:39 PM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" They may claim that DeCSS is circumvention because the software implements CSS without requiring the same onerous restrictions found in the DVD-CAA license terms (Macrovision, no cleartext copy, no fair use access, privacy of the keys). These however are not a part of CSS but only required by the CSS **license** and not needed strictly to implement CSS... From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:10:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20554 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:10:48 -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 PAA20551 for ; Fri, 14 Jul 2000 15:10:46 -0400 Message-ID: <20000714190910.8549.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 14 Jul 2000 12:09:10 PDT Date: Fri, 14 Jul 2000 12:09:10 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Another approach to "semantics" 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 --- Chris Moseng wrote: > Well, space shifing is more of a copyright idea, and the keys are not > copyrightable. They are a trade secret, and the trade secret is > "protected" with the anti-reverse engineering clauses in the EULAs. > Not very well protected, because the trade secret is not secret > anymore. Most trade secret statues (including CA's) specifically exempt reverse engineering from being misappropriation. There is also the unsettled issue that Circuit Courts disagree over whether Federal copyright law would preempt a no-RE clause in a copyright licence. And of course, there is no clear picture among Courts over when a shrinkwrap/clickwrap EULA is a valid contract at all. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:17:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20632 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:17:48 -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 PAA20628 for ; Fri, 14 Jul 2000 15:17:46 -0400 Message-ID: <20000714191611.9424.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Fri, 14 Jul 2000 12:16:11 PDT Date: Fri, 14 Jul 2000 12:16:11 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS 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 think this quote from Carson (right?) of the Copyright Office is very important, because the LOC was the entity designated by Congress to decide when "fair access" exists, and here we see them being pretty bold in questioning whether a CSS type system is even access control at all. I think there is a case to be made that a Judge should not preempt such a determination from the rightful statutory entity. Congress clearly empowered the LOC to ensure that fair use was preserved even in 1201(a), because they speak about this volumously in the legislative history. --- "Robert S. Thau" wrote: > 6 It strikes me that what we are > 7 describing is perhaps a copying control device in > 8 access control clothing. In other words, you've got > 9 a device that controls access to a work, but not in > 10 the way that, certainly before this rulemaking > 11 began, I thought we were talking about. We were > 12 talking about access control devices. > 13 In other words, I assumed -- naively, > 14 perhaps -- that a technological measure that > 15 controls access to a work, the purpose of that is to > 16 make sure that authorized users and only authorized > 17 users are getting access to the works. So if I paid > 18 the price to the copyright owner otherwise be able > 19 to use that work, then I'm entitled to use it. > 20 And if he somehow gets access to it by > 21 circumventing encryption or passwords, or whatever, > 22 then she's in trouble because she's not an > 23 authorized user. I'm not in trouble because I am. > 24 That's got nothing to do, as far as I can tell, with > 25 what you're talking about. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:23:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20793 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:23:59 -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 PAA20790 for ; Fri, 14 Jul 2000 15:23:57 -0400 Message-ID: <20000714192221.8502.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 14 Jul 2000 12:22:21 PDT Date: Fri, 14 Jul 2000 12:22:21 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Another approach to "semantics" 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: > So ... you've actually paid for the use of every aspect > of the system including the hardware and keys ... oh, wait, > you'd still need to have a paid-for player key (which > is what I thought we were talking about ) ... but > you got one of those w/ the player that (usually) comes > with your drive ... but that player won't run under Linux, > so where is the legality preventing you from making use > of keys that you legitimately own in a "space shifted" (read > "OS shifted") manner? Well, I'd assume you have to use the same player key as the one your purchased player provides. Since DeCSS uses the Xing key, unless you own the Xing player you're not actually space shifting it. I don't think that an encryption key, which is just a short random number qualifies as an original work of authorship necessary to provide copyright protection alone. Copying of the unprotected elements does not require even "fair use" - it's simply something that is public domain. Here's a nice quote to support this: _____________________ DSC COMMUNS. CORP. V. PULSE COMMUNS. INC. 976 F. Supp. 359 (E.D. VA 1997) "The fact that computer programs are distributed for public use in object code form often precludes public access to the ideas and functional concepts contained in those programs, and thus confers on the copyright owner a de facto monopoly over those ideas and functional concepts. That result defeats the fundamental purpose of the Copyright Act to encourage the production of original works by protection the expressive elements of those works while leaving the ideas, facts, and functional concepts in the public domain for others to build on." __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:34:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21073 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:34:21 -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 PAA21070 for ; Fri, 14 Jul 2000 15:34:19 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id PAA19719 for ; Fri, 14 Jul 2000 15:33:14 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id PAA17328 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 15:33:14 -0400 Date: Fri, 14 Jul 2000 15:33:14 -0400 Message-Id: <200007141933.PAA17328@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I think this quote from Carson (right?) of the Copyright Office is very > important, because the LOC was the entity designated by Congress to > decide when "fair access" exists, and here we see them being pretty > bold in questioning whether a CSS type system is even access control at > all. > > I think there is a case to be made that a Judge should not preempt such > a determination from the rightful statutory entity. Congress clearly > empowered the LOC to ensure that fair use was preserved even in > 1201(a), because they speak about this volumously in the legislative > history. Well, it *was* Carson, but the quote only reflects his initial impression of the meaning of the law --- I was just trying to point out what it means when you just read it. Marks tried hard to lead him down the "use of encryption" primrose path afterwards, and may well have succeeded. At any rate, it's certainly not (yet) a *finding* of the LOC, so I'm not sure that the issue of judicial preemption arises. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 15:49:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21177 for dvd-discuss-outgoing; Fri, 14 Jul 2000 15:49:05 -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 PAA21174 for ; Fri, 14 Jul 2000 15:48:53 -0400 Message-ID: <20000714194718.11630.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 14 Jul 2000 12:47:18 PDT Date: Fri, 14 Jul 2000 12:47:18 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > Well, it *was* Carson, but the quote only reflects his initial > impression of the meaning of the law --- I was just trying to point > out what it means when you just read it. Marks tried hard to lead > him down the "use of encryption" primrose path afterwards, and > may well have succeeded. At any rate, it's certainly not (yet) > a *finding* of the LOC, so I'm not sure that the issue of > judicial preemption arises. My point is that if his first impression was such, then it is at least somewhat likely that this position might not change. Certainly the LOC has been conducting a lengthy and methodical information gathering process as a result of being delegated the policy-making authority by Congress. It would be foolish and disrespectful of the Court to substitue its judgement for that of the proper authority. There is clearly some political balancing at play here, and a judge should defer to the political process which is still in deliberation. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 16:36:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21413 for dvd-discuss-outgoing; Fri, 14 Jul 2000 16:36:14 -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 QAA21410 for ; Fri, 14 Jul 2000 16:36:13 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CMQD>; Fri, 14 Jul 2000 13:35:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CFA@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 13:35:04 -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: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > > --- Richard Hartman wrote: > > So ... you've actually paid for the use of every aspect > > of the system including the hardware and keys ... oh, wait, > > you'd still need to have a paid-for player key (which > > is what I thought we were talking about ) ... but > > you got one of those w/ the player that (usually) comes > > with your drive ... but that player won't run under Linux, > > so where is the legality preventing you from making use > > of keys that you legitimately own in a "space shifted" (read > > "OS shifted") manner? > > Well, I'd assume you have to use the same player key as the one your > purchased player provides. Since DeCSS uses the Xing key, unless you > own the Xing player you're not actually space shifting it. What was being proposed when we mentioned space-shifting the key was taking the key from whatever player he legitimately owned and using -that- key (not the Xing key) in the Linux player, and then attempting to determine the legalities that pertained. > I don't think that an encryption key, which is just a short random > number qualifies as an original work of authorship necessary > to provide > copyright protection alone. No ... but possession of the key ... correction, -legitimate- possession of the key is indicative of authorization. Once I have legitimate posession of the key because I own some other player that makes use of that key, don't I have the ability to use that key in any way that works for me? That is, is the authority in the -key- (which it must be, cryptographically if not legally) or in the -player- (specifically denied by the manufacturers, and making little sense legally). If the authority is in the proper ownership of the key, then I -am- authorized -- completely -- to view the DVD. I have the DVD, I have the key. How I put the two together (their player or some other) is outside the purvue of any agreement they might be able to ascribe to me. In short: even if they can claim circumvention when DeCSS uses the (stolen) Xing key, is it possible for them to claim circumvention if I use DeCSS with a key that I have legitimate possession of? >Copying of the unprotected elements does > not require even "fair use" - it's simply something that is public > domain. No ... but if the key represents authorization it is not the key itself that is important, but the transaction implied by (legitimate) ownership thereof. They can claim that we don't have authorization to use the Xing key ... but they can't claim we don't have authorization to use a key that belongs to a player we own! -- -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 Jul 14 17:40:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22251 for dvd-discuss-outgoing; Fri, 14 Jul 2000 17:40:15 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22248 for ; Fri, 14 Jul 2000 17:40:14 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id OAA05473 for ; Fri, 14 Jul 2000 14:39:07 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma005395; Fri, 14 Jul 00 14:38:36 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id PAA14423; Fri, 14 Jul 2000 15:38:36 -0600 From: "John Zulauf" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 15:41:03 -0600 Message-ID: <001301bfeddc$35b055c0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 From: Leland Ray > Suppose that the P's argue that CSS is BOTH the code to > transform, and the license agreement. How would that > affect your argument? Let's go back to the law here (IANAL) 1201 (a) (1) "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." 1201 (a) (1) protects effective technical measures (TPM) that control access to the work. If CSS somehow embodies the license restrictions as well is become (at least in part) a "contractual protective measure" or CPM. I don't see how 1201 protects a CPM. A CPM however can only be effective with a party to the contract. I'm not a party to any such contract and therefore it's terms cannot be imposed on me. So we're back to CSS being just that, the CSS code. Scramble-descramble, that's all. They've said in court the descrambling==circumvention, in arguement if not in testimony. They've testified it is the encryption that protects the work and the persistant cleartext of the DVD that is the risk of harm. I don't know how they can change that now. That's the beauty of depositions. They have a set of contractual restrictions on the CSS licensees they'd like to protect. The have a pretextual i.e. non-effective TPM for reasons we've hashed out**(see below for humourus rendition). Back on point: Look at it other way. If CSS is BOTH the code and the license, then every DVD user has been given only partial CSS. They've been given the code, the keys, but not the license (didn't fall out of my DVD box). I have a player that has been affected by the license -- the video is degraded (Macrovision), I am required to watch commercials I cannot skip, I cannot create an archival copy, et. al. -- but I haven't been given the license. Just call the DVD CAA, I'm sure I'm not on their list. JUST KIDDING ALERT -- DON'T REALLY DO THIS!!!! Hmmm. Maybe we should all call the DVD CAA to see if we have a DVD license and if so what are it's terms and exactly when did we agree to them. How are they going to file 1,000 lawsuits a day if they're busy answering the phones. END JUST KIDDING ALERT **The DCMA case if Perry Mason were involved: (Def= Defense counsel, WfP= Witness for prosection) Def: Is CSS a technological measure that effectively controls access to a work? WfP: Yes. (has to say yes) Def: Does it perform some tests to see if a user is authorized to access a work? WfP: yes (has to say yes, else case over -- right? if it performs no tests how can it control access) Def: Does CSS require the user enter a password? WfP: No. Def: Does CSS require the user to enter some form of user identification? WfP: No. Def: Does CSS check with a central database to test if the user is authorized to access the work? WfP: No. Def: Does CSS require the user to insert a smart card? WfP: No. Def: Does CSS require the user to attach a "dongle" -- conversation describe a dongle WfP: No. Def: Does CSS require the user to enter a "license key" supplied by the copyright holder or assignee WfP: No. Def: Does CSS require the user to enter some "proof of purchase" for the work? WfP: No. Def: Does CSS require the user to have even one cereal box top? WfP: No. Def: Does CSS require the user to do anything but insert the DVD? WfP: No. Def: Does CSS require the user to contact the copyright holder or assignee to gain authorization to access the work the first time he or she accesses it? WfP: No. Def: Does CSS require the user to contact the copyright holder or assignee to gain authorization to access the work subsequent times? WfP: No. Def: Does CSS require the user to seek permission from any authority to view the work at any time? WfP: No. Def: Does CSS it restrict the number of times the user can access the work? WfP: No. Def: Apart from mere possession of a DVD player and a DVD disk, what is required for the user to obtain access a DVD work? WfP: Nothing. Def: Apart from mere possession of a CD player and CD disk, what is required for the user to obtain access to a CD work? Wfp: Nothing. Def: Does a CD player have a TPM? WfP: No. Def: How can a technical measure that make no test for authorization beyond mere possession, and requires no higher level of authorization than a work with no TPM be considered effective? WfP: I'm so sorry... IT'S PRETEXTUAL! IT PRETEXTUAL! He MADE me do it! He made me do it... same questions for Divx ... different results From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 17:55:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22484 for dvd-discuss-outgoing; Fri, 14 Jul 2000 17:55:04 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22480 for ; Fri, 14 Jul 2000 17:55:02 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13DDP9-0008P3-00; Fri, 14 Jul 2000 14:53:55 -0700 Date: Fri, 14 Jul 2000 14:53:55 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus trial brief outline & RAS Message-ID: <20000714145355.B9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000714194718.11630.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000714194718.11630.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Jul 14, 2000 at 12:47:18PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > [...] It would be foolish and disrespectful of the Court to > substitue its judgement for that of the proper authority. There is > clearly some political balancing at play here, and a judge should defer > to the political process [...] This is of course exactly what the plaintiffs have to say about the claim that the DMCA is unconstitutional or overbroad. -- 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 Jul 14 18:41:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23007 for dvd-discuss-outgoing; Fri, 14 Jul 2000 18:41:03 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA23004 for ; Fri, 14 Jul 2000 18:41:02 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id PAA07900 for ; Fri, 14 Jul 2000 15:39:56 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 15:39:55 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf, on Friday, July 14, 2000 9:39 AM, wrote > >>Jim Taylor wrote: > >> But you are not licensed to use the CSS keys. This is taken out of context. The context was "you are not licensed to take the CSS keys from one player and stick them in another". >That's right, but why do I have to be. Right, you don't have to be. You don't need a license to play. You need a license to create an authorized player. From Hollywood's point of view, their property will inevitably be stolen unless every player that is able to play it can make reasonable safeguards against it being stolen. (Of course Hollywood errs on the side of paranoia and would prefer to prevent any sort of copying, including fair-use copying, but it this is technically impossible, and possibly legally impossible.) The way Hollywood limits theft is to create a mechanism, protected by the DMCA, that they only make available to player creators who promise to play by the rules: "We let you use our algorithm and keys if you keep our stuff safe from copying." The license controls implementation of keys in players and discs, not how end users watch video. Arguments about Divx, and the user never signing a license or being told the secret are beside the point, since only player makers and disc makers sign licenses and get the secrets (even though they are no longer secret). >Look at this sentence carefully. I know you wrote it concerning DeCSS, but >think of it in terms of the licensed-player. The movie companies has a >license with the DVDCAA. The DVDCAA has a license with the player >manufacturers. How does the end-user receive a license? What are it's >terms, conditions, limitations, and restrictions. When does the the user >agree to these? Exactly. The end user is not involved. I don't believe the plaintiffs would try to say that he is. [Snipped points about no agreement to not use Macrovision , kinetic sculptures, and still-suits.] Yes, the end user can do anything they want with a player. You can watch discs without worrying about someone jumping out of a closet to challenge your authority. Hollywood doesn't care until you make copies of their work. They would rather not differentiate between legal copies and illegal copies. Most of the rest of us would. The problem comes down to the device used to make copies. If it can be used to easily circumvent the system put in place to prevent copying, then it is a threat to the safeguards allowed the copyright owner by copyright law and by the DMCA. This is the crux of the case. Arguments about who licensed whom are tangential. If it can be proved that DeCSS has valid uses, like a photocopier, then the threat is mitigated and the plaintiffs have a weak leg to stand on. >> I don't think so. The CSS keys, along with the CSS authentication >algorithm >> and decryption algorithm, compose a TPM. > >Two nits. One that's "comprise a TPM" No, you got it backwards. Check a manual of style: "the parts compose the whole; the whole comprises the parts." Remember, I is a riter. ;-) -- second how can a TPM with a fixed >set of keys be considered effective in a 1201 sense. What is the measure of "effectiveness"? Why does it matter? The DMCA does not specify a particular level that a TPM must meet. I think any reasonable person would agree that CSS is TPM. That it's not highly effective doesn't disqualify it. Without something such as DeCSS, the average user would never be able to circumvent CSS. (They would still have many other ways to copy the video, but not by directly circumventing CSS.) >Also the combination >pretextual as it always works, requires no access time authorization from >the copyright holder, or other external information. It's like a safe with >the combination engraved on the door or the key welded into the lock. If >you have access to the safe you have the access to the contents. That's not >a safe. This "pretextual" argument makes unreasonable demands on the copyright holder. Using the safe analogy, it would be like requiring the manufacturer of the safe to come down and open it for you every time you needed access. CSS is more like a safe where everyone who was supposed to be able to get in the safe was given the combination, but now lots of other people know it. Whether the secrecy breech occurred by cracking (reverse-engineering) or by someone finding out the password doesn't matter. If you use the public password to take the contents of the safe, you're stealing. Getting back to the crux of the issue: if the combination to the safe were posted on the Internet but no one broke into the safe, then it would be hard to prove any wrongdoing. Hollywood has to prove that their safe is being ransacked. They can't prove that it is being ransacked now, so they're trying to show that it will be in the future. >> If your hypothetical DeCSS variant >> were intended primarily to circumvent the TPM, > >Why do you use the P's "descambling which is circumvention" language? On >what basis do you claim DeCSS is "circumvention" in the legal sense of the >word? This kind of unwarranted conclusion must be challenged both on fact >and law. I made no such claim. I'm focusing on intent and potential use, which is what DMCA (in my reading) focuses on. >First, clearly, not all descrambling is circumvention else how >could a licensed CSS descrambler be built with out breaking 1201. Agreed. But a device designed to circumvent a TPM (which may or may not involve descrambling) comes under 1201. DeCSS *can* be used to circumvent CSS. No one can make a strong argument to contrary. CSS was built to be a TPM. DeCSS was built to remove the "protection" of CSS. Authorized DVD players were also built to remove the protection of CSS, but unlike DeCSS they provide other protections in its place. I think it can be argued that DVD players could be used to circumvent CSS. But they would have to be modified, and circumvention is not their primary purpose. I'm not saying that circumvention is DeCSS's primary purpose -- this is exactly what the defendants have to defend. >Second, >just HOW is DeCSS a circumvention of CSS? How does a "circumvention" differ >from any "implementation?" I think the burden is on the P's here to show >this difference. Now we're getting somewhere. The burden is on the defendants to show that DeCSS is enough of an implementation to mitigate its potential use as a circumvention. >Does the Win32 open source WINE interface "circumvent" or "implement" >Windows? Of course not. In the context of this discussion there is no TPM for Win32, so there's nothing to circumvent. >They may claim that DeCSS is circumvention because the software implements >CSS without requiring the same onerous restrictions found in the DVD-CAA >license terms (Macrovision, no cleartext copy, no fair use access, privacy >of the keys). These however are not a part of CSS but only required by the >CSS **license** and not needed strictly to implement CSS. DeCSS is a full >implementation of CSS (or it wouldn't work) but not of the license enforced >use restrictions. All the things MPAA wants to protect are not a part of >CSS (not even region coding) but enforced by contractual terms of the CSS >license and imposed on the licensees based on the DVD-CAA's monopoly power. Right. CSS was created so these restrictions could be made to protect copyright. Other things such as region management were thrown in as well, since there was no other good place for them. This probably weakens CSS. >Perhaps we are circumventing the license-based use restrictions, but then >again, we never signed the license and a license isn't a TPM. Again, license to end users is irrelevant. The license creates the control that the copyright holder has over authorized implementations. An authorized implementation has authority to access the content. [snipped stuff about playing disc in standalone player] >Sadly I find I cannot view the disc >directly from my DVD drive. My MPEG player can't read the format. Because your DVD drive is not an authorized implementation. >So I >copy and reformat (from cypher-text VOB to cleartext VOB) the movie, and >wham -- now I can play my movie. I have implemented a CSS compliant (else >the decryption wouldn't work) process to view my movie within the bound of >the authority granted to me by the copyright holder, the constitution, fair >use, etc. The copyright holders would not agree with you. You may be ok under fair use or copyright law, but I assume they would say you were not authorized to view the movie because you did not use an authorized implementation. >How have I circumvented? That's the $64 million question. Most people would say you haven't. But I don't think that's what the plaintiffs are focusing on. The fact that you (or someone else) *could* use DeCSS to spread copies is what makes it a threat. So the court must judge how your loss of ability to play a movie on any device of your choice balances against the copyright holder's need to protect his work from theft. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 18:41:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23034 for dvd-discuss-outgoing; Fri, 14 Jul 2000 18:41:38 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA23030 for ; Fri, 14 Jul 2000 18:41:36 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id PAA19478 for ; Fri, 14 Jul 2000 15:40:22 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA08108; Fri, 14 Jul 2000 15:38:53 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 15:37:43 -0700 Organization: A poorly-installed InterNetNews site Lines: 15 Distribution: isaac Message-ID: <8ko4nn$7ta$1@blowfish.isaac.cs.berkeley.edu> References: <200007140202.WAA10652@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > The fact that it took over two years for CSS to be cracked says > something, since most of us (including anyone in Hollywood who understood > what CSS was) expected it to happen sooner. Uhh, I think you meant to say "it took over two years for the CSS algorithm to be disclosed, but then only a few days for it to be broken". The fact is, the two year delay referred to above consisted of waiting at least two years for the algorithm to be disclosed, then waiting a few days or weeks for it to be broken. (Before it was disclosed, noone with any experience in the field was likely to spend any of their valuable time on it.) This is a reflection on how long it took before someone got interested enough in the DVD system to reverse-engineer it, not an indication of the strength of the system. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:04:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23275 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:04:33 -0400 Received: from gull.prod.itd.earthlink.net (gull.prod.itd.earthlink.net [207.217.121.85]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA23272 for ; Fri, 14 Jul 2000 19:04:32 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by gull.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA08801 for ; Fri, 14 Jul 2000 16:03:26 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 16:03:26 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <001301bfeddc$35b055c0$87ce0593@ia.nsc.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf, on Friday, July 14, 2000 2:41 PM, wrote > >**The DCMA case if Perry Mason were involved: (Def= Defense counsel, WfP= >Witness for prosection) Revised screenplay, with smarter defendant: >Def: Is CSS a technological measure that effectively controls access to a >work? >WfP: Yes. (has to say yes) >Def: Does it perform some tests to see if a user is authorized to access a >work? WfP: No, how could CSS test the user? It can't tell if the disc is stolen, for example. Def: Then how does it establish authority? WfP: By expecting that only an authorized player and an authorized copy of the work (encrypted, with CSS disc and title keys) will pass the CSS algorithm. Def: But what about pirated discs? WfP: CSS can't protect from piracy. That's covered under separate laws. >Def: Does CSS require the user enter a password? WfP: No. How would that establish authority? The password could be stolen or the work could be an illegal copy. >Def: Does CSS require the user to enter some form of user identification? WfP: No. Ibid. >Def: Does CSS check with a central database to test if the user is >authorized to access the work? WfP: No. Ibid. >Def: Does CSS require the user to insert a smart card? WfP: No. But that's a good idea. We'll work on that for the next version. >Def: Does CSS require the user to attach a "dongle" -- conversation describe >a dongle WfP: That's silly. CSS is a dongle that's built into the player. >Def: Does CSS require the user to enter a "license key" supplied by the >copyright holder or assignee WfP: No. The user does not need to be licensed. >Def: Does CSS require the user to enter some "proof of purchase" for the >work? WfP: No. That is established by the presence of keys on the disc. Of course the disc could be stolen or illegally duplicated. >Def: Does CSS require the user to have even one cereal box top? WfP: No. But one of those "Box Top$ for Education" thingies lets them access hidden menus. >Def: Does CSS require the user to do anything but insert the DVD? >WfP: No. >Def: Does CSS require the user to contact the copyright holder or assignee >to gain authorization to access the work the first time he or she accesses >it? WfP: Hah hah hah hah. >Def: Does CSS require the user to contact the copyright holder or assignee >to gain authorization to access the work subsequent times? WfP: Snort, snigger. >Def: Does CSS require the user to seek permission from any authority to view >the work at any time? >WfP: No. >Def: Does CSS it restrict the number of times the user can access the work? >WfP: No. >Def: Apart from mere possession of a DVD player and a DVD disk, what is >required for the user to obtain access a DVD work? WfP: The player must be authorized. The maker of the player must sign a license that allows them to implement CSS. This is transparent to the user. Of course it's possible for there to be unauthorized players and unauthorized discs that implement CSS, but CSS can't tell the difference. >Def: Apart from mere possession of a CD player and CD disk, what is required >for the user to obtain access to a CD work? >Wfp: Nothing. >Def: Does a CD player have a TPM? WfP: No. Why is that relevant? Or were you thinking of DVD-Audio and CPPM? > > > Def: Hmm, I suppose that this entire tack on authorization of the user hasn't really gotten me anywhere, since it would be unreasonable to require DVD players to evaluate the authority of the user each time they attempt to access a work. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:12:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA23679 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:12:15 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA23676 for ; Fri, 14 Jul 2000 19:12:14 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id QAA19599 for ; Fri, 14 Jul 2000 16:11:01 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id QAA08178; Fri, 14 Jul 2000 16:09:31 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 16:08:25 -0700 Organization: A poorly-installed InterNetNews site Lines: 8 Distribution: isaac Message-ID: <8ko6h9$7uv$1@blowfish.isaac.cs.berkeley.edu> References: <8klsth$5ug$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > Nice try. ;-) But you aren't licensed to extract or transfer the keys from > a player. You have just "deauthorized" yourself. That doesn't seem like a terrible stretch to you? I have to admit it seems like a stretch to me. It all sounds so much like a "Big-Mother"-esque ``because I said so''! From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:20:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24135 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:20:16 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24132 for ; Fri, 14 Jul 2000 19:20:15 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id QAA24759 for ; Fri, 14 Jul 2000 16:19:10 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 16:19:09 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <8ko4nn$7ta$1@blowfish.isaac.cs.berkeley.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No, I meant cracked, regardless of method. CSS was indeed weak enough to be easily cracked once a foothold was provided, but strong enough that apparently no one tried to crack it via brute force. This points out that protection via secrets is doomed to fail, but it also shows that the CSS mechanism as a whole was strong enough to protect content from being directly copied the average user. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of David A. Wagner Sent: Friday, July 14, 2000 3:38 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Jim Taylor wrote: > The fact that it took over two years for CSS to be cracked says > something, since most of us (including anyone in Hollywood who understood > what CSS was) expected it to happen sooner. Uhh, I think you meant to say "it took over two years for the CSS algorithm to be disclosed, but then only a few days for it to be broken". The fact is, the two year delay referred to above consisted of waiting at least two years for the algorithm to be disclosed, then waiting a few days or weeks for it to be broken. (Before it was disclosed, noone with any experience in the field was likely to spend any of their valuable time on it.) This is a reflection on how long it took before someone got interested enough in the DVD system to reverse-engineer it, not an indication of the strength of the system. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:39:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24312 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:39:05 -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 TAA24309 for ; Fri, 14 Jul 2000 19:39:03 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CMZP>; Fri, 14 Jul 2000 16:38:06 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CFD@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 16:38:02 -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 Lack of evidence is not proof of anything, much less proof that it was strong protection. The lack of a successful crack can be explained by the lack of anybody trying as easily as the failure of those who did try. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Jim Taylor [mailto:jtfrog@usa.net] > Sent: Friday, July 14, 2000 4:19 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > No, I meant cracked, regardless of method. CSS was indeed > weak enough to be > easily cracked once a foothold was provided, but strong enough that > apparently no one tried to crack it via brute force. This > points out that > protection via secrets is doomed to fail, but it also shows > that the CSS > mechanism as a whole was strong enough to protect content from being > directly copied the average user. > > > -- > Jim Taylor > Author of DVD Demystified and the DVD FAQ > > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of > David A. Wagner > Sent: Friday, July 14, 2000 3:38 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > Jim Taylor wrote: > > The fact that it took over two years for CSS to be cracked says > > something, since most of us (including anyone in Hollywood > who understood > > what CSS was) expected it to happen sooner. > > Uhh, I think you meant to say "it took over two years for the CSS > algorithm to be disclosed, but then only a few days for it to > be broken". > > The fact is, the two year delay referred to above consisted of waiting > at least two years for the algorithm to be disclosed, then waiting > a few days or weeks for it to be broken. (Before it was disclosed, > noone with any experience in the field was likely to spend > any of their > valuable time on it.) This is a reflection on how long it took before > someone got interested enough in the DVD system to > reverse-engineer it, > not an indication of the strength of the system. > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:41:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24391 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:41:23 -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 TAA24388 for ; Fri, 14 Jul 2000 19:41:22 -0400 Received: from ip72.bedford9.ma.pub-ip.psi.net ([38.32.79.72]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13DF44-0005NA-00 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 19:40:17 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 19:34:11 -0400 Message-ID: References: <001301bfeddc$35b055c0$87ce0593@ia.nsc.com> 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 TAA24389 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 14 Jul 2000 16:03:26 -0700, Jim Taylor wrote: >Def: Hmm, I suppose that this entire tack on authorization of the user >hasn't really gotten me anywhere, since it would be unreasonable to require >DVD players to evaluate the authority of the user each time they attempt to >access a work. Flash to the joke of the veteran on the job greeting the newbie, "If you're looking for someone with a little authority around here, see me--I have as little authority as anybody." Face it--they don't trust us enough to ever give us any authority. There is none to press play; none for private home viewing [no one takes that boilerplate seriously;] none at point of purchase; or on inserting the disc. They only let us use the product out of the expectation we might buy or rent another one. They don't authorize anything vis a vis the consumer. Without any initial authority, the consumer has no recourse when his player keys are retired or the industry moves to CSS2/3/* and he is forced to buy a new player. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:42:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24406 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:42:02 -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 TAA24403 for ; Fri, 14 Jul 2000 19:42:01 -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:2.21) with ESMTP id TAA24276 for ; Fri, 14 Jul 2000 19:40:57 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA28631 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 19:40:56 -0400 (EDT) Date: Fri, 14 Jul 2000 19:40:56 -0400 (EDT) Message-Id: <200007142340.TAA28631@soggy-fibers.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Access control without encryption --- new argument Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I've come up with another way to try to break up the plaintiffs' assertion that "effective access control" and "encryption technology" are effectively synonymous --- we can easily imagine effective access control technologies which *don't* encrypt the content they protect; instead, they keep it out of the hands of unauthorized individuals in any form. Consider SSL client certificates --- used I think (but I should check!) at MIT to protect access to student records. Briefly, any student can get a certificate which allows their browser to certify their identity to a server. Access to a student's records is then conditioned on having the proper certificate; if you don't present the cert, then the document isn't server *at all*, in any form. If it is served, then it is served encrypted, but that is not essential to the access control functionality; without the encryption, you would still have access control with the certs. And you would still have access control --- without a student's cert, you don't get that student's records. This is now in my "reductio" paper, http://www.ai.mit.edu/people/rst/dmca/auth/auth.html along with hopefully self-contained sections on a bunch of other topics: Technical facts of the case Access controls and the DMCA The applicable statute Examples CSS, DeCSS and plaintiffs' analysis Problems with plaintiffs' analysis Pretextual, false encryption Encryption not required for access control; any process could be regulated Inconsistent with Congressional intent Inconsistent with Constitutional principles These problems inhere only to the plaintiffs' reading Consequences of adopting plaintiffs' reading Conclusion There's a table of contents at the top, so you can jump to the analysis of any of these things without seeing how cleverly I've explained the tech, if that's what you'd like. (If you've got an old copy in your browser, hit "refresh"). BTW, since the acknowledgments are still TBD, I'd like to thank Ole for his helpful comments on the earlier draft, along, of course, with the rest of the group. Thanks. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:48:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24473 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:48:00 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24470 for ; Fri, 14 Jul 2000 19:47:58 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13DFAS-0000DC-00; Fri, 14 Jul 2000 16:46:52 -0700 Date: Fri, 14 Jul 2000 16:46:52 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000714164652.H9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <8ko4nn$7ta$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: ; from jtfrog@usa.net on Fri, Jul 14, 2000 at 04:19:09PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > No, I meant cracked, regardless of method. CSS was indeed weak enough to be > easily cracked once a foothold was provided, but strong enough that > apparently no one tried to crack it via brute force. I don't quite understand the significance of this statement. You can't crack an unknown cipher by brute force, because the number of possible ciphers (including the number which produce a particular ciphertext from a particular plaintext) is infinite. You might be able to identify the unknown cipher with a particular class of known or possible ciphers, and then try to gather evidence in support of that identification ("It looks like they are using DES in ECB mode!"). The CSS cipher was _not known_ (to the public) for two years. Once it was known, it was cracked quickly. > This points out that > protection via secrets is doomed to fail, but it also shows that the CSS > mechanism as a whole was strong enough to protect content from being > directly copied the average user. A Caesar cipher and a CSS-like license agreement are probably strong enough to prevent content from being directly copied by the average user. :-) The average user today isn't a programmer, which makes the average user very reliant on what programmers choose to implement. -- 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 Jul 14 19:52:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24547 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:52:29 -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 TAA24544 for ; Fri, 14 Jul 2000 19:52:27 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id TAA25490 for ; Fri, 14 Jul 2000 19:51:22 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id TAA17532 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 19:51:21 -0400 Date: Fri, 14 Jul 2000 19:51:21 -0400 Message-Id: <200007142351.TAA17532@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Access control without encryption --- new argument Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The typo monster strikes again! I wrote: > Consider SSL client certificates --- used I think (but I should check!) > at MIT to protect access to student records. Briefly, any student can > get a certificate which allows their browser to certify their identity > to a server. Access to a student's records is then conditioned on having > the proper certificate; if you don't present the cert, then the document > isn't server *at all*, in any form. If it is served, then it is served ^^^ *served* > encrypted, but that is not essential to the access control functionality; > without the encryption, you would still have access control with the certs. > And you would still have access control --- without a student's cert, you > don't get that student's records. And so, once again, we have effective access control without encryption, contrary to the P's assertion that "encryption process" and "effective access control" are somehow synonymous... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:52:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24556 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:52:58 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24553 for ; Fri, 14 Jul 2000 19:52:52 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6ENqoU28200; Fri, 14 Jul 2000 19:52:50 -0400 Date: Fri, 14 Jul 2000 19:52:50 -0400 Message-Id: <200007142352.e6ENqoU28200@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf wrote: >From: Leland Ray >Def: Does CSS require the user to insert a smart card? >WfP: No. >Def: Does CSS require the user to attach a "dongle" -- conversation describe >a dongle >WfP: No. >Def: Does CSS require the user to enter a "license key" supplied by the >copyright holder or assignee >WfP: No. Just one thing: You insert the disc which entails inserting a title key. The title key is on the disc. Now this is the problem: #1 Do they say you cannot copy the key anywhere separate from the title content? Because in DeCSSing you make it possible for the title key to be separated from the content allowing the content to be transmitted over the Net. #2 Does the DVD state that not all of the features of the DVD are used therefore separating navigation from "content" does not imply quoting but a significant removal of content. What I mean is: Is it stated anywhere that this DVD is used as an alternate storage system for a traditional movie. Or is stated anywhere that this DVD's navigation system is simply an aid for usrs but does not constitute part of the content as a full blown DVD would be. >Def: Does CSS require the user to enter some "proof of purchase" for the >work? >WfP: No. Title key. >Def: Does CSS require the user to have even one cereal box top? >WfP: No. >Def: Does CSS require the user to do anything but insert the DVD? >WfP: No. Inserts key along with DVD. >Def: Does CSS require the user to contact the copyright holder or assignee >to gain authorization to access the work the first time he or she accesses >it? >WfP: No. >Def: Does CSS require the user to contact the copyright holder or assignee >to gain authorization to access the work subsequent times? >WfP: No. >Def: Does CSS require the user to seek permission from any authority to view >the work at any time? >WfP: No. >Def: Does CSS it restrict the number of times the user can access the work? >WfP: No. > >Def: Apart from mere possession of a DVD player and a DVD disk, what is >required for the user to obtain access a DVD work? >WfP: Nothing. Insertion of title key. It's just a convenience that it goes in with the DVD at play time. This whole case hinges on authorization. However they did fail to make it clear that it is the title key that is important. What they should have done is: Prohibit separating title keys and content. Clearly state what is protected. In this case, what is protected is the prevention of the separation of key and content. Make title keys non transferable and hence content. Which leaves us with: DeCSS (the algorithms) do not separate key and content. Some DeCSS based software does do that. Then rather than licensing a DeCSS player, the MPAA should state: Any interoperabilty utility must preserve the authentication system, that is title key and content. Beyond that they have no case. >same questions for Divx ... different results > > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 19:58:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24742 for dvd-discuss-outgoing; Fri, 14 Jul 2000 19:58:30 -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 TAA24739 for ; Fri, 14 Jul 2000 19:58:29 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id TAA26147 for ; Fri, 14 Jul 2000 19:57:24 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id TAA17541 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 19:57:23 -0400 Date: Fri, 14 Jul 2000 19:57:23 -0400 Message-Id: <200007142357.TAA17541@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Revised screenplay, with smarter defendant: > > >Def: Is CSS a technological measure that effectively controls access to a > >work? > >WfP: Yes. (has to say yes) > >Def: Does it perform some tests to see if a user is authorized to access a > >work? > WfP: No, how could CSS test the user? It can't tell if the disc is stolen, > for example. Well, it could phone a central authority (like Divx). It could fail to play the disk unless a disk-specific key were loaded into it (like a PPV set-top box). Et cetera. The failure of CSS to do any of these things doesn't mean it is establishing authority a different way. It means it isn't establishing authority at all. And the plaintiffs' word games don't change that --- which was the point of John's Perry Mason script. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 20:03:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24800 for dvd-discuss-outgoing; Fri, 14 Jul 2000 20:03:51 -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 UAA24797 for ; Fri, 14 Jul 2000 20:03:50 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CM5Y>; Fri, 14 Jul 2000 17:02:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1CFE@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 17:02:49 -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 IOW in order to be considered access -control-, some control must be evidenced. Since decryption -always- occurs, no control is evidenced. There is no difference to the user in playing a DVD (supposedly controlled) and playing a CD (not controlled). In truth, the only thing being controlled here is the manufacturers, not the users. That, however, is not access control, it is market control. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Friday, July 14, 2000 4:57 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > > Revised screenplay, with smarter defendant: > > > > >Def: Is CSS a technological measure that effectively > controls access to a > > >work? > > >WfP: Yes. (has to say yes) > > >Def: Does it perform some tests to see if a user is > authorized to access a > > >work? > > WfP: No, how could CSS test the user? It can't tell if the > disc is stolen, > > for example. > > Well, it could phone a central authority (like Divx). It could fail > to play the disk unless a disk-specific key were loaded into it (like > a PPV set-top box). Et cetera. > > The failure of CSS to do any of these things doesn't mean it is > establishing authority a different way. It means it isn't > establishing > authority at all. And the plaintiffs' word games don't > change that --- > which was the point of John's Perry Mason script. > > rst > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 20:10:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24906 for dvd-discuss-outgoing; Fri, 14 Jul 2000 20:10:30 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA24903 for ; Fri, 14 Jul 2000 20:10:28 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA25617 for ; Fri, 14 Jul 2000 17:09:23 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 17:09:23 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CFD@mail2.onetouch.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thousands of people tried. They all failed. I received dozens of e-mails from people asking my why a movie didn't play after they copied it to their hard drive. They didn't try very hard, since some of them didn't even know about CSS or how to begin to attempt to implement it or get around it, but it achieved its purpose. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Richard Hartman Sent: Friday, July 14, 2000 4:38 PM To: 'dvd-discuss@eon.law.harvard.edu' Subject: RE: [dvd-discuss] Another approach to "semantics" Lack of evidence is not proof of anything, much less proof that it was strong protection. The lack of a successful crack can be explained by the lack of anybody trying as easily as the failure of those who did try. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Jim Taylor [mailto:jtfrog@usa.net] > Sent: Friday, July 14, 2000 4:19 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > No, I meant cracked, regardless of method. CSS was indeed > weak enough to be > easily cracked once a foothold was provided, but strong enough that > apparently no one tried to crack it via brute force. This > points out that > protection via secrets is doomed to fail, but it also shows > that the CSS > mechanism as a whole was strong enough to protect content from being > directly copied the average user. > > > -- > Jim Taylor > Author of DVD Demystified and the DVD FAQ > > -----Original Message----- > From: owner-dvd-discuss@eon.law.harvard.edu > [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of > David A. Wagner > Sent: Friday, July 14, 2000 3:38 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > Jim Taylor wrote: > > The fact that it took over two years for CSS to be cracked says > > something, since most of us (including anyone in Hollywood > who understood > > what CSS was) expected it to happen sooner. > > Uhh, I think you meant to say "it took over two years for the CSS > algorithm to be disclosed, but then only a few days for it to > be broken". > > The fact is, the two year delay referred to above consisted of waiting > at least two years for the algorithm to be disclosed, then waiting > a few days or weeks for it to be broken. (Before it was disclosed, > noone with any experience in the field was likely to spend > any of their > valuable time on it.) This is a reflection on how long it took before > someone got interested enough in the DVD system to > reverse-engineer it, > not an indication of the strength of the system. > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 20:15:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24980 for dvd-discuss-outgoing; Fri, 14 Jul 2000 20:15:20 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA24976 for ; Fri, 14 Jul 2000 20:15:19 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6F0FIh31612; Fri, 14 Jul 2000 20:15:18 -0400 Date: Fri, 14 Jul 2000 20:15:18 -0400 Message-Id: <200007150015.e6F0FIh31612@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: >John Zulauf, on Friday, July 14, 2000 2:41 PM, wrote >> >>**The DCMA case if Perry Mason were involved: (Def= Defense counsel, WfP= >>Witness for prosection) > >Revised screenplay, with smarter defendant: Well one more can't hurt . >>Def: Is CSS a technological measure that effectively controls access to a >>work? >>WfP: Yes. (has to say yes) >>Def: Does it perform some tests to see if a user is authorized to access a >>work? >WfP: No, how could CSS test the user? It can't tell if the disc is stolen, >for example. I'll buy that. >Def: Then how does it establish authority? >WfP: By expecting that only an authorized player and an authorized copy of >the work (encrypted, with CSS disc and title keys) will pass the CSS >algorithm. Exactly: title key and content. >Def: But what about pirated discs? >WfP: CSS can't protect from piracy. That's covered under separate laws. However the MPAA can restrict content from being available without the key. >>Def: Does CSS require the user enter a password? >WfP: No. How would that establish authority? The password could be stolen or >the work could be an illegal copy. >>Def: Does CSS require the user to insert a smart card? >WfP: No. But that's a good idea. We'll work on that for the next version. >>Def: Does CSS require the user to attach a "dongle" -- conversation >describe >>a dongle >WfP: That's silly. CSS is a dongle that's built into the player. Right. >WfP: No. That is established by the presence of keys on the disc. Of course >the disc could be stolen or illegally duplicated. Precisely. >>Def: Does CSS require the user to have even one cereal box top? >WfP: No. But one of those "Box Top$ for Education" thingies lets them access >hidden menus. LOL >Def: Hmm, I suppose that this entire tack on authorization of the user >hasn't really gotten me anywhere, since it would be unreasonable to require >DVD players to evaluate the authority of the user each time they attempt to >access a work. Unix filesystems check permissions on files transparently everytime you try to access them. Not unreasonable. >-- >Jim Taylor >Author of DVD Demystified and the DVD FAQ > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 20:47:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25194 for dvd-discuss-outgoing; Fri, 14 Jul 2000 20:47:58 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25191 for ; Fri, 14 Jul 2000 20:47:56 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA22503 for ; Fri, 14 Jul 2000 17:46:51 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 17:46:50 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CFE@mail2.onetouch.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman, on Friday, July 14, 2000 5:03 PM, wrote >There is no difference >to the user in playing a DVD (supposedly controlled) and >playing a CD (not controlled). >From an aesthetics point of view, there should be no difference to the user. They should not have to know or care that DVD has a TPM and CD does not. But when they attempt to copy a DVD they'll run into problems (unlike copying a CD). DeCSS is caught right in the middle. Some claim it's a device for copying discs, others claim it's a device to enable playing discs. >In truth, the only >thing being controlled here is the manufacturers, >not the users. That, however, is not access control, >it is market control. That's a pretty good argument. However, access control is being implemented through market control. If you argue that market control has harmed consumers, you might get somewhere. But outside of Linux there seems to be no ill effect from market control: there are over 70 brands of DVD players available, dozens of software and hardware DVD decoder/players for Windows, DVD playback built into Mac OS, Sony Playstation II, Xbox, Nuon, iDVD, etc. Where's the harmed market? >> From: Robert S. Thau [mailto:rst@ai.mit.edu] >> Sent: Friday, July 14, 2000 4:57 PM >> The failure of CSS to do any of these things doesn't mean it is >> establishing authority a different way. It means it isn't >> establishing >> authority at all. To paraphrase Richard Hartman, who just correctly took me to task for implying that failure proves something, failure to establish authority in the way you would like doesn't mean that your definition of authority is the only correct one. The DMCA does not define authority. Why is a modem required to establish authority? Do cashiers have to establish my authority to pay for something with cash? They expect that if a bill looks genuine then it is genuine. Educated cashiers even know how to check anti-counterfeiting features. If I used a credit card, then there could be communication with a clearinghouse that does a better job of establishes my authority. But just as open DVD is easier to use than Divx was, cash is easier to use than credit cards. My authority to engage in a legal transaction is established by the nature of the medium. If I make counterfeit money just for fun, am I doing anything illegal? (I don't actually know the answer to that question.) Do I have a right to create printing plates to make backup copies of my money in case I destroy it in the wash? (Ok, I'm stretching here. ;-) The government controls the equipment to make money. With the DMCA, the government sanctions the control of the equipment to play DVDs. Once again we're tangential to the issue, since I think the whole authority argument is fruitless. The crux is that printing presses aren't illegal just because they can counterfeit money. Is DeCSS a printing press or is it a counterfeiting operation? (I think the money analogy is a good one. I almost feel guilty for suggesting it, if the plaintiffs are paying attention.) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 20:54:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25304 for dvd-discuss-outgoing; Fri, 14 Jul 2000 20:54:54 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25301 for ; Fri, 14 Jul 2000 20:54:53 -0400 Received: from hoth (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA08195 for ; Fri, 14 Jul 2000 17:53:48 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 17:53:48 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: <20000714164652.H9454@zork.net> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen, on Friday, July 14, 2000 4:47 PM, wrote >You can't crack an unknown cipher by brute force, because the number >of possible ciphers (including the number which produce a particular >ciphertext from a particular plaintext) is infinite. But CSS could have been cracked by brute force since part of the content is already cleartext. >A Caesar cipher and a CSS-like license agreement are probably strong >enough to prevent content from being directly copied by the average >user. :-) An XOR process is strong enough. ;-) That's my point. It doesn't matter that CSS is the cryptographic equivalent of flimsy door if the average person can't kick the door down. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 21:04:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25379 for dvd-discuss-outgoing; Fri, 14 Jul 2000 21:04:32 -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 VAA25376 for ; Fri, 14 Jul 2000 21:04:30 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id VAA03335 for ; Fri, 14 Jul 2000 21:03:25 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id VAA17615 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 21:03:25 -0400 Date: Fri, 14 Jul 2000 21:03:25 -0400 Message-Id: <200007150103.VAA17615@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian writes: > >Def: Does CSS require the user to enter some "proof of purchase" for the > >work? > >WfP: No. > > Title key. Hmmm... the title key is only one of many things that are required on the DVD to assure normal playback, besides the video itself --- the directory sectors, the .IFO files, etc. The plaintiffs say that the title key is effective access control, and these other things are not. But all of these things are essential for normal playback; without any of them, the disk won't play. Why is this access control in the case of a title key, but not in the case of a .IFO file? Because the plaintiffs say so. There is no other reason. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 21:33:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25495 for dvd-discuss-outgoing; Fri, 14 Jul 2000 21:33:07 -0400 Received: from ts0210.bates.edu (root@ts0205.bates.edu [134.181.72.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25492 for ; Fri, 14 Jul 2000 21:33:03 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id VAA00740 for ; Fri, 14 Jul 2000 21:36:45 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 14 Jul 2000 21:36:43 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 14 Jul 2000, Jim Taylor wrote: > >In truth, the only > >thing being controlled here is the manufacturers, > >not the users. That, however, is not access control, > >it is market control. > > That's a pretty good argument. However, access control is being implemented > through market control. If you argue that market control has harmed > consumers, you might get somewhere. But outside of Linux there seems to be > no ill effect from market control: there are over 70 brands of DVD players > available, dozens of software and hardware DVD decoder/players for Windows, > DVD playback built into Mac OS, Sony Playstation II, Xbox, Nuon, iDVD, etc. > Where's the harmed market? The harmed market is the consumers who are forced to watch the ads, to accept the limitations that the agreement imposes upon them, who are unable to make fair use of their work, etc. > > >> From: Robert S. Thau [mailto:rst@ai.mit.edu] > >> Sent: Friday, July 14, 2000 4:57 PM > > >> The failure of CSS to do any of these things doesn't mean it is > >> establishing authority a different way. It means it isn't > >> establishing > >> authority at all. > > To paraphrase Richard Hartman, who just correctly took me to task for > implying that failure proves something, failure to establish authority in > the way you would like doesn't mean that your definition of authority is the > only correct one. > > The DMCA does not define authority. Why is a modem required to establish > authority? Do cashiers have to establish my authority to pay for something > with cash? They expect that if a bill looks genuine then it is genuine. > Educated cashiers even know how to check anti-counterfeiting features. If I > used a credit card, then there could be communication with a clearinghouse > that does a better job of establishes my authority. But just as open DVD is > easier to use than Divx was, cash is easier to use than credit cards. My > authority to engage in a legal transaction is established by the nature of > the medium. Right, but stealing cash and using it isn't fraud, it's just theft. Whereas stealing credit cards and using them is fraud *and* theft. There is no authorization policy for cash, and there is for credit cards. There isn't one for DVDs either, but the Plaintiffs want to claim otherwise. > > If I make counterfeit money just for fun, am I doing anything illegal? (I > don't actually know the answer to that question.) Do I have a right to > create printing plates to make backup copies of my money in case I destroy > it in the wash? (Ok, I'm stretching here. ;-) > Yeah, all of these are illegal. > The government controls the equipment to make money. With the DMCA, the > government sanctions the control of the equipment to play DVDs. Once again > we're tangential to the issue, since I think the whole authority argument is > fruitless. The crux is that printing presses aren't illegal just because > they can counterfeit money. Is DeCSS a printing press or is it a > counterfeiting operation? The government has made rules to set up itself as having a monopoloy on legal tender. The government prohibits private industruy from setting itself up in a similar position. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5b848t+kM0Mq9M/wRAqqyAKC+6LWJBytvmq1kZ7ydXeBP62FAaACbBy6a MpN/5VMMOiiAhqq66qb4Q8c= =LVk+ -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 22:40:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25762 for dvd-discuss-outgoing; Fri, 14 Jul 2000 22:40:58 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25759 for ; Fri, 14 Jul 2000 22:40:57 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6F2euf16434; Fri, 14 Jul 2000 22:40:56 -0400 Date: Fri, 14 Jul 2000 22:40:56 -0400 Message-Id: <200007150240.e6F2euf16434@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >Rares Marian writes: > > >Def: Does CSS require the user to enter some "proof of purchase" for the > > >work? > > >WfP: No. > > > > Title key. > >Hmmm... the title key is only one of many things that are required on the DVD >to assure normal playback, besides the video itself --- the directory sectors, >the .IFO files, etc. It's a question of orthogonality. That's all. Can I create a movie without the video? No. Can I create a movie without the key? Yes. Think of it like this: The car is not a part of your stereo. A poower source in general a required part of a stereo, but that doesn't mean it has to come from your car. >The plaintiffs say that the title key is effective access control, and these >other things are not. But all of these things are essential for normal >playback; without any of them, the disk won't play. Why is this access >control in the case of a title key, but not in the case of a .IFO file? >Because the plaintiffs say so. There is no other reason. Orthogonality. It's something you learn when designing software and hardware. You don't just throw it all in one pot and hope you get a product out. The best way I can put it is: You can't use a stereo that has its face plate removed. But clearly that is an artificial requirement. Yet at the same time it's not an arbitrary requirement. >rst Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 14 23:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA26009 for dvd-discuss-outgoing; Fri, 14 Jul 2000 23:38:22 -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 XAA26006 for ; Fri, 14 Jul 2000 23:38:20 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id XAA19513 for ; Fri, 14 Jul 2000 23:37:15 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id XAA17740 for dvd-discuss@eon.law.harvard.edu; Fri, 14 Jul 2000 23:37:14 -0400 Date: Fri, 14 Jul 2000 23:37:14 -0400 Message-Id: <200007150337.XAA17740@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian writes: > > > Title key. > > > >Hmmm... the title key is only one of many things that are required > >on the DVD to assure normal playback, besides the video itself --- > >the directory sectors, the .IFO files, etc. > > It's a question of orthogonality. That's all. Can I create a movie > without the video? No. Can I create a movie without the key? Yes. You're being silly. When I create a web page, I don't *have* to load it up with MSIE-specific Javascript which blows up old versions of Netscape, but I can. Does that constitute an access control mechanism which marks only MSIE as an "authorized" player? Of course not. > Orthogonality. It's something you learn when designing software and > hardware. You don't just throw it all in one pot and hope you get a > product out. As designer of the extension API of a widely used software product, the Apache web server (check the credits at www.apache.org/contributors/ --- I'm under emeritae), I am somewhat familiar with the concept. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:11:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26499 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:11:05 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26496 for ; Sat, 15 Jul 2000 00:11:04 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id VAA00337 for ; Fri, 14 Jul 2000 21:09:56 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id VAA08819; Fri, 14 Jul 2000 21:08:14 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 21:07:05 -0700 Organization: A poorly-installed InterNetNews site Lines: 39 Distribution: isaac Message-ID: <8koo19$8jh$1@blowfish.isaac.cs.berkeley.edu> References: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > From Hollywood's point of view, > their property will inevitably be stolen unless every player that is able to > play it can make reasonable safeguards against it being stolen. [...] > The way Hollywood limits theft > is to create a mechanism, protected by the DMCA, that they only make > available to player creators who promise to play by the rules [...] It's worth saying, by the way, that from a purely technical point of view (forget the policy, the fair use stuff, so on, just pay attention to whether these goals can ever be achieved), this all sounds very doable, until you remember that Hollywood _also_ wants software players. >From a technical perspective, the concept of software players is fundamentally incompatible with copy prevention when the threat model includes a reasonably-sophisticated adversary. I realize that copyright holders might wish to maximize their revenues by supporting software players while still asking for full security, but you just can't have them both at the same time -- and no amount of lobbying for laws that say "pi = three" can change that. (Oops, ok, a little bit of policy slipped in there at the end. Sorry!) This is the lesson that the the computer game copy-protection wars in the 80's drove home; I would hope that Hollywood has learned the lesson, too. Compare, for instance, to DIVX, which (at least initially) supported only tamper-resistant hardware players and thus seemed to actually have a hope of preventing full-quality digital copying. There's a cost for that, but at least DIVX paid more than mere lip service to security. Sadly, I regret that many in the DVD industry seem unwilling to publicly admit that there is an unavoidable tradeoff here. I fear that some may have made a secret executive decision to treat piracy from software players as an acceptable loss but then play-acted to gather public sympathy by characterizing such piracy as a "shocking" instance of theft. ("I am shocked, shocked to find gambling in this institution! -- Your winnings, sir.") If this is indeed what is going on, should such shenanigans be rewarded? It's something to think about, in any case. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:14:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26580 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:14:15 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26577 for ; Sat, 15 Jul 2000 00:14:14 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6F4ED823929; Sat, 15 Jul 2000 00:14:13 -0400 Date: Sat, 15 Jul 2000 00:14:13 -0400 Message-Id: <200007150414.e6F4ED823929@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >Rares Marian writes: > > > > > Title key. > > > > > >Hmmm... the title key is only one of many things that are required > > >on the DVD to assure normal playback, besides the video itself --- > > >the directory sectors, the .IFO files, etc. > > > > It's a question of orthogonality. That's all. Can I create a movie > > without the video? No. Can I create a movie without the key? Yes. >You're being silly. When I create a web page, I don't *have* to load >it up with MSIE-specific Javascript which blows up old versions of >Netscape, but I can. Does that constitute an access control mechanism >which marks only MSIE as an "authorized" player? Of course not. Well IE5.5 pretty much fuck^H^H^Hlouts standards so that it controls access. It's a classic MS tactic. I'm also working from what the word key means usually. ("Today folks key means irish cocker spaniel.") I really don't think I'm being silly here. I don't need a key to do the minimum tasks required to turn a DVD into video signals. The key is an artificial requirement because of the concept of property. Or to put it another way, your argument tells me that there's no difference between stealing someone's car keys or a tire. They're supposedly both required to be able to drive a car. I do see the title key as a dongle. What else can I say? There really is a polar bear in a snowstorm on that white canvas. The problem for the MPAA is they have something to lose if they were to specify everything clearly. It doesn't even matter what for the purpose of argument. They chose to protect themselves by blocking reverse engineering instead of just out right saying: do not remove this tag. I'd have no problem with that. Clearly they figured they could get away with more by saying you must license this. The problem is it gives them power to disconnect licensing from reality. You must sign that you will jump on one foot before the use of this product. So yes in a sense they seem to use arbitrary logic where they like to tie people's hands behind their backs. The thing is the title key is used as a key. I have no problem with keys. I have a huge problem with the head games, the blanket statements, the attacks on people who have the skill to practically compete with them. That's bull. But anyway. If they charged the DeCSS crew with circumvention of the union of the key and the content I'd have to download the code and see for myself it does this. If it does then they would have the limited right to require DeCSS to be modified so that it does not separate the title content and key. No injunction against distribution because clearly the code could be changed. An injunction would be inevitable if say it was not possible to modify DeCSS. The other problem is their utter arrogance. You customer me vendor. I make I sell you buy. Oddly enough it's what it is going kill their case. Finally, I'm beginning to wonder if it's even possible to design an automated key based system that allows one to authenticate ownership that can't be faked. > > Orthogonality. It's something you learn when designing software and > > hardware. You don't just throw it all in one pot and hope you get a > > product out. > >As designer of the extension API of a widely used software product, >the Apache web server (check the credits at www.apache.org/contributors/ >--- I'm under emeritae), I am somewhat familiar with the concept. DOH! >rst Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:18:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26627 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:18:55 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26624 for ; Sat, 15 Jul 2000 00:18:54 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id VAA00377 for ; Fri, 14 Jul 2000 21:17:50 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id VAA08850; Fri, 14 Jul 2000 21:16:12 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 21:16:02 -0700 Organization: A poorly-installed InterNetNews site Lines: 14 Distribution: isaac Message-ID: <8kooi2$8kg$1@blowfish.isaac.cs.berkeley.edu> References: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > Yes, the end user can do anything they want with a player. You can watch > discs without worrying about someone jumping out of a closet to challenge > your authority. Hollywood doesn't care until you make copies of their work. So are you suggesting that, if I build a DVD player for Linux that only displays movies but includes absolutely no ability whatsoever to make copies (no, none at all), and if I opt not to bother with getting a license from the DVDCCA, and I post the binary on Slashdot, then Hollywood will have no problem with that? That sounds like a good start to me, at least. I say, three cheers to Hollywood, if they are willing to allow this. It does seem to be a change from the position set forth by the plaintiffs in the NY case, though. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:25:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26690 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:25:06 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26682 for ; Sat, 15 Jul 2000 00:25:04 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id VAA00415 for ; Fri, 14 Jul 2000 21:23:59 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id VAA08886; Fri, 14 Jul 2000 21:22:21 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 21:22:12 -0700 Organization: A poorly-installed InterNetNews site Lines: 23 Distribution: isaac Message-ID: <8kootk$8ll$1@blowfish.isaac.cs.berkeley.edu> References: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > -- second how can a TPM with a fixed > >set of keys be considered effective in a 1201 sense. > > What is the measure of "effectiveness"? Why does it matter? The DMCA does > not specify a particular level that a TPM must meet. I believe that Jim Taylor is absolutely right. The definition of "effective" in the DMCA is pretty close to a no-op, as far as I can tell; if I understand the language of the law correctly, the DMCA seems to be using the meaning "has the effect of", or something like that, which specifies very little requirement on the robustness of the device. Though I too initially found it surprising that anyone could consider CSS an effective protection mechanism, I couldn't find any language in the DMCA suggesting that "effective" imposes any substantive requirement on the technical security level of the TPM. Many people on this mailing list have suggested that one should look to the authority model, not the "effective" word, if one wants to find lower limits on what can qualify as a DMCA-protected TPM. This is all very confusing to me, of course, so I could have it all wrong. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:28:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26777 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:28:49 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26774 for ; Sat, 15 Jul 2000 00:28:48 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id VAA00436 for ; Fri, 14 Jul 2000 21:27:44 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id VAA08922; Fri, 14 Jul 2000 21:26:05 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 21:25:56 -0700 Organization: A poorly-installed InterNetNews site Lines: 5 Distribution: isaac Message-ID: <8kop4k$8mn$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1CFA@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can't yet see how the space-shifting doctrine might apply. Tell me where I go wrong: The space-shifting doctrine allows certain forms of use of a copyrighted work; but the CSS keys aren't copyrighted. Did I miss something? From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:42:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26844 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:42:32 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26841 for ; Sat, 15 Jul 2000 00:42:31 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13DJlW-0000iT-00; Fri, 14 Jul 2000 21:41:26 -0700 Date: Fri, 14 Jul 2000 21:41:26 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Message-ID: <20000714214126.N9454@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <000801bfedb2$0e260ec0$87ce0593@ia.nsc.com> <8kooi2$8kg$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <8kooi2$8kg$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Fri, Jul 14, 2000 at 09:16:02PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > Jim Taylor wrote: > > Yes, the end user can do anything they want with a player. You can watch > > discs without worrying about someone jumping out of a closet to challenge > > your authority. Hollywood doesn't care until you make copies of their work. > > So are you suggesting that, if I build a DVD player for Linux that > only displays movies but includes absolutely no ability whatsoever to > make copies (no, none at all), and if I opt not to bother with getting a > license from the DVDCCA, and I post the binary on Slashdot, then Hollywood > will have no problem with that? > > That sounds like a good start to me, at least. I say, three cheers to > Hollywood, if they are willing to allow this. It does seem to be a change > from the position set forth by the plaintiffs in the NY case, though. The DVD CCA will sue you for trade secret misappropriation; since they aren't copyright holders, they may not sue you for circumvention. Your failure to pay a license fee (among other things) might bother them. slashdot will want you to post the source code, and then the copyright holders may become upset with you. If you just want a Linux player with no source code that meets DVD CCA standards... you can spend the money that you save on lawyers on a CSS license. :-) -- 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 Jul 15 00:45:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26944 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:45:02 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA26941 for ; Sat, 15 Jul 2000 00:45:00 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA29063 for ; Fri, 14 Jul 2000 23:43:37 -0500 Message-ID: <396FEAB2.E2A6B8EB@mninter.net> Date: Fri, 14 Jul 2000 23:38:10 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" References: <5A8391CA2D9ED311AFAA080009D982B10B1CFA@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 > They can claim that we don't have authorization to use > the Xing key ... but they can't claim we don't have authorization > to use a key that belongs to a player we own! > > -- > -Richard M. Hartman > hartman@onetouch.com Au contraire. Revisit my map of their probable authority model. They can claim whatever they wish for as long as we let them, even making inconsistent claims about authorization, until we force them to tell us their authorization algorithm. Authorization is a moving target until they are pinned down and we give them a noogie and they say "uncle!" Just be aware that anything we try to assert as certainly authorized will be met with equivocation. They have to tell us, we shouldn't have to guess, prod and theorize. Then, when all is revealed, we can tell them how it doesn't make any sense. http://eon.law.harvard.edu/archive/dvd-discuss/msg04503.html -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 00:46:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA27035 for dvd-discuss-outgoing; Sat, 15 Jul 2000 00:46:20 -0400 Received: from swan.prod.itd.earthlink.net (swan.prod.itd.earthlink.net [207.217.120.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA27032 for ; Sat, 15 Jul 2000 00:46:19 -0400 Received: from ValuedSonyCustomer (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id VAA17243 for ; Fri, 14 Jul 2000 21:45:06 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Fri, 14 Jul 2000 21:40:21 -0700 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) Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 In-Reply-To: <8koo19$8jh$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I agree with most of this. Good points and complaints... not much good in court, though. ;-) I also agree with David's conclusion that it may well be impossible to create an authority model (as proposed in this list) that can't be fooled. So where do you draw the line? When does a TPM have "good enough" authority checking? --Jim -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of David A. Wagner Sent: Friday, July 14, 2000 9:07 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Another approach to "semantics" Jim Taylor wrote: > From Hollywood's point of view, > their property will inevitably be stolen unless every player that is able to > play it can make reasonable safeguards against it being stolen. [...] > The way Hollywood limits theft > is to create a mechanism, protected by the DMCA, that they only make > available to player creators who promise to play by the rules [...] It's worth saying, by the way, that from a purely technical point of view (forget the policy, the fair use stuff, so on, just pay attention to whether these goals can ever be achieved), this all sounds very doable, until you remember that Hollywood _also_ wants software players. >From a technical perspective, the concept of software players is fundamentally incompatible with copy prevention when the threat model includes a reasonably-sophisticated adversary. I realize that copyright holders might wish to maximize their revenues by supporting software players while still asking for full security, but you just can't have them both at the same time -- and no amount of lobbying for laws that say "pi = three" can change that. (Oops, ok, a little bit of policy slipped in there at the end. Sorry!) This is the lesson that the the computer game copy-protection wars in the 80's drove home; I would hope that Hollywood has learned the lesson, too. Compare, for instance, to DIVX, which (at least initially) supported only tamper-resistant hardware players and thus seemed to actually have a hope of preventing full-quality digital copying. There's a cost for that, but at least DIVX paid more than mere lip service to security. Sadly, I regret that many in the DVD industry seem unwilling to publicly admit that there is an unavoidable tradeoff here. I fear that some may have made a secret executive decision to treat piracy from software players as an acceptable loss but then play-acted to gather public sympathy by characterizing such piracy as a "shocking" instance of theft. ("I am shocked, shocked to find gambling in this institution! -- Your winnings, sir.") If this is indeed what is going on, should such shenanigans be rewarded? It's something to think about, in any case. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 01:01:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27113 for dvd-discuss-outgoing; Sat, 15 Jul 2000 01:01:48 -0400 Received: from ts0210.bates.edu (root@ts0205.bates.edu [134.181.72.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27110 for ; Sat, 15 Jul 2000 01:01:44 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id BAA05852 for ; Sat, 15 Jul 2000 01:05:27 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Sat, 15 Jul 2000 01:05:25 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 14 Jul 2000, Jim Taylor wrote: > I agree with most of this. Good points and complaints... not much good in > court, though. ;-) > > I also agree with David's conclusion that it may well be impossible to > create an authority model (as proposed in this list) that can't be fooled. > So where do you draw the line? When does a TPM have "good enough" authority > checking? No, we don't want an authority model that can't be fooled. (That would be impossible, and it's in the realm of implementation, not authority policy.) We want an authority model that *can* be fooled. Fooling the DivX system would be fairly simple (from a thought standpoint): 1) RE the wire protocol (via some sort of packet sniffer). 2) Build a device that can talk to players like the server can. 3) Plug player into device, and the player thinks it's billing you, but really isn't. For cable TV, all you need is a descrambler. But our point is, fooling the DVD/CSS authority model is *meaningless*. They don't try to prevent you from doing bad things, and they don't have a method for checking if you do. Their authority model is 0% alligators, 100% litigators. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5b/8nt+kM0Mq9M/wRAoNWAKCOVdy54LRhTZH3XVtY7Y+EaPNiYwCfTA+J USaPM+iynwngnpCAQeZVRjU= =6JOA -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 01:04:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27394 for dvd-discuss-outgoing; Sat, 15 Jul 2000 01:04:52 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27391 for ; Sat, 15 Jul 2000 01:04:51 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA00569 for ; Fri, 14 Jul 2000 22:03:47 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA08996; Fri, 14 Jul 2000 22:02:09 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 22:01:02 -0700 Organization: A poorly-installed InterNetNews site Lines: 38 Distribution: isaac Message-ID: <8kor6e$8p2$1@blowfish.isaac.cs.berkeley.edu> References: <8ko4nn$7ta$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > No, I meant cracked, regardless of method. Good! So did I. > CSS was indeed weak enough to be > easily cracked once a foothold was provided, but strong enough that > apparently no one tried to crack it via brute force. I don't quite understand what you are saying here, but are you sure we would know it if CSS keys had been successfully recovered by exhaustive keysearch? I've heard suggestions that the keys had been recovered by Asian pirates far in advance of DeCSS publication. I have no evidence to suggest that this is true, but I have no evidence to suggest that it is false, either. And, history shows that when the bad guys break your security system, they frequently don't bother to warn you about it in advance. :-) > This points out that > protection via secrets is doomed to fail, but it also shows that the CSS > mechanism as a whole was strong enough to protect content from being > directly copied the average user. Ahh, good. That's the point that I've been trying to make, too. CSS doesn't prevent mass piracy, nor was it ever intended to. Instead, CSS was apparently intended to "keep honest people honest". And, so far, it seems to have succeeded at that. For the time being, I see little change (although I'll freely admit that the flaws in the CSS cipher, and in the DVD security architecture, may eventually change that and allow average users to routinely pirate copyrighted material (which would indeed be unfortunate)). Indeed, had the CSS cipher been competently designed, and had software players not been made available, the DVD industry might well have had a security system adequate to prevent the average user from copying movies for many years to come. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 01:08:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27495 for dvd-discuss-outgoing; Sat, 15 Jul 2000 01:08:37 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27492 for ; Sat, 15 Jul 2000 01:08:36 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA00584 for ; Fri, 14 Jul 2000 22:07:31 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA09018; Fri, 14 Jul 2000 22:05:53 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 22:05:43 -0700 Organization: A poorly-installed InterNetNews site Lines: 23 Distribution: isaac Message-ID: <8korf7$8pp$1@blowfish.isaac.cs.berkeley.edu> References: <20000714164652.H9454@zork.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > Seth David Schoen, on Friday, July 14, 2000 4:47 PM, wrote > >You can't crack an unknown cipher by brute force, because the number > >of possible ciphers (including the number which produce a particular > >ciphertext from a particular plaintext) is infinite. > > But CSS could have been cracked by brute force since part of the content is > already cleartext. No, that's just not true. Having known plaintext doesn't allow you to crack an unknown cipher by brute force. The brute force trial encryption attack, by definition, requires you to know the encryption algorithm so you can do those trial encryptions. Until the CSS algorithm was revealed, no competent cryptanalyst was likely to pay any attention to the issue. Once the algorithm was revealed, it was cryptanalyzed in a mere matter of days. The timing is striking, no? The delay indicates _nothing_ about the security of the algorithm. Instead, it shows the difficulty of finding someone patient enough to reverse-engineer the algorithm and reveal it to the world (rather than trying to exploit their results for criminal ends). From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 01:12:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27541 for dvd-discuss-outgoing; Sat, 15 Jul 2000 01:12:51 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27538 for ; Sat, 15 Jul 2000 01:12:50 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA00609 for ; Fri, 14 Jul 2000 22:11:45 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA09058; Fri, 14 Jul 2000 22:10:07 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 14 Jul 2000 22:09:58 -0700 Organization: A poorly-installed InterNetNews site Lines: 19 Distribution: isaac Message-ID: <8korn6$8r1$1@blowfish.isaac.cs.berkeley.edu> References: <8koo19$8jh$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > I agree with most of this. Good points and complaints... not much good in > court, though. ;-) Thanks. I agree, I would hope that the judge would not be swayed by such considerations. > I also agree with David's conclusion that it may well be impossible to > create an authority model (as proposed in this list) that can't be fooled. Actually, that wasn't my conclusion at all. I apologize; I probably did a poor job of explaining. Circuit City DIVX is an example of how to implement an access control check with a real authority model, one good enough that it seems to actually have a hope of preventing digital copying even against very sophisticated attackers. The tamper-resistant hardware calls up an online center and makes sure you have paid before descrambling the disk. Circuit City DIVX seems to be a good example of "good enough". From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 01:14:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27581 for dvd-discuss-outgoing; Sat, 15 Jul 2000 01:14:00 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27578 for ; Sat, 15 Jul 2000 01:13:59 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6F5Dwg30758; Sat, 15 Jul 2000 01:13:58 -0400 Date: Sat, 15 Jul 2000 01:13:58 -0400 Message-Id: <200007150513.e6F5Dwg30758@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner wrote: >In article <200007150414.e6F4ED823929@tbird.iworld.com> you write: >> I'm also working from what the word key means usually. > >That's a funny sentence, because "key" usually implies some sort of secret. >By that usage, DVD security doesn't use any keys. They're all public. > >Sorry. I know language games probably aren't going to be very fruitful. >But the post you are responding to made a good point, which I think you >overlooked somehow. MSIE JavaScript foo is not secret. CSS "keys" are >not secret, either. What's the difference? Last I checked, title keys are secret. I may have missed something here. Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 03:24:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA28089 for dvd-discuss-outgoing; Sat, 15 Jul 2000 03:24:14 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA28086 for ; Sat, 15 Jul 2000 03:24:12 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id AAA20983 for ; Sat, 15 Jul 2000 00:22:53 -0700 Date: Sat, 15 Jul 2000 00:22:53 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <20000714192221.8502.qmail@web514.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 Fri, 14 Jul 2000, Bryan Taylor wrote: > Well, I'd assume you have to use the same player key as the one your > purchased player provides. Since DeCSS uses the Xing key, unless you > own the Xing player you're not actually space shifting it. DeCSS can use any old key you compile into it (if you take the broad meaning of DeCSS that the Ps foist on us). Once the Xing player key was out in the clear, it was possible to generation several other keys... many of which are NOT assigned to anyone and therefore aren't stolen. They are legitimately reverse-engineered. > I don't think that an encryption key, which is just a short random > number qualifies as an original work of authorship necessary to provide > copyright protection alone. Copying of the unprotected elements does > not require even "fair use" - it's simply something that is public > domain. Exactly. And since we're not bound by the CSS license, we can do whatever we want with our own implementation of CSS. We've got a key (legitimately REd from a player that didn't conform with the CSS license), we've got a CSS implementation, we can make a player and use it. Bryan keeps coming back and implying that we, the general public, our somehow bound by the CSS license. Do not confuse the license with the algorithm. And that was a BAD move whoever originally suggested using our "legitimate" player keys in our Linux player. Don't forget that the CSS license expressly forbids an implementation that allows for cleartext access to the player key. So we'd be right back where we are. I can implement CSS however I like. Location of the keys is NOT part of CSS, it's part of the CSS license. Distribution of the keys is how the MPAA says access is controlled. But the only key distribution controlled by the MPAA is the one that comes on the disc at sale. The other key comes from an external body and has nothing to do with authorization to access. So here's my last bit and it's a question: If the plaintiff distributes keys on legitimate disks and DeCSS is only really used to access legitimate disks, how they even INVOLVED in this suit? I mean, it's their work that may or may not be illegally accessed/distributed, but it's not their code that's been hijacked. This is just a slightly convoluted version of the RIAA hypothetically suing a fellow who publishes cd ripping code. Bah. This is so ludicrous and frustrating. It makes me sick and sad that we have to fight such nonsensical battles. J. PS. I think patent law is fairly well-handled (with the exception of software patents which are poorly administered and ill-conceived) and does the right thing. I'd like to see copyright law more like patent law: very short time periods to encourage quick development and dissemination of material in a timely manner, registration and numbering, etc. Who's with me? If I devote a list to this, does it merit discussion? -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 03:58:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA28277 for dvd-discuss-outgoing; Sat, 15 Jul 2000 03:58:24 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA28274 for ; Sat, 15 Jul 2000 03:58:22 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id AAA21045 for ; Sat, 15 Jul 2000 00:57:05 -0700 Date: Sat, 15 Jul 2000 00:57:04 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 Stay tuned to the end, folks. I know I'm responsible for a good deal of chaff around here, but I think there are some reasonable seeds in this one. On Fri, 14 Jul 2000, Jim Taylor wrote: > > > In truth, the only thing being controlled here is the manufacturers, > > not the users. That, however, is not access control, it is market > > control. > > That's a pretty good argument. However, access control is being > implemented through market control. If you argue that market control > has harmed consumers, you might get somewhere. But outside of Linux > there seems to be no ill effect from market control: there are over 70 > brands of DVD players available, dozens of software and hardware DVD > decoder/players for Windows, DVD playback built into Mac OS, Sony > Playstation II, Xbox, Nuon, iDVD, etc. Where's the harmed market? The harmed market is the market for high end DVD players that have digital output for my huge digital display. The harmed market is for players that allow me to make backup copies of software. The harmed market is for players that will feed my PC via firewire to incorporate scenes from Election into my parody/class project/home movies/editorial. The harmed market is the market for the features that we're not allowed to ever have by the CSS license. Technology allows them. People would use them. But they cannot be implemented under the CSS license. Just because there's high profits doesn't mean the market is healthy. The CSS license prevents innovation in the field of DVD Video players. > Do cashiers have to establish my authority to pay for something with > cash? They expect that if a bill looks genuine then it is genuine. > Educated cashiers even know how to check anti-counterfeiting features. > If I used a credit card, then there could be communication with a > clearinghouse that does a better job of establishes my authority. But > just as open DVD is easier to use than Divx was, cash is easier to use > than credit cards. My authority to engage in a legal transaction is > established by the nature of the medium. Paying with cash is like using a disc that you bought. Paying with a credit card is like using a disc that you license. Cash is a "first sale" kind of medium. There's an issue regarding copy control (counterfeiting), but access control isn't in the spec. Credit cards are a "pay per use" kind of medium. There's an issue of access control (signatures, verification of billing address, etc.), but no real copy control (I can use my card over the phone). > The government controls the equipment to make money. With the DMCA, the > government sanctions the control of the equipment to play DVDs. Once again > we're tangential to the issue, since I think the whole authority argument is > fruitless. The crux is that printing presses aren't illegal just because > they can counterfeit money. Is DeCSS a printing press or is it a > counterfeiting operation? What?!? DeCSS isn't a DVD copier. DeCSS is part of a player. Players are cashiers in your analogy. A latter DivX player is the cashier you mentioned: It takes cash (plays DVD Videos) and credit cards (DivX movies). It assumes the rights for the former and verifies the rights for the latter. In your analogy, DeCSS is the attendant at a garage sale: It's a cashier without means of verifying access authority. Cash only, please. > (I think the money analogy is a good one. I almost feel guilty for > suggesting it, if the plaintiffs are paying attention.) Oh, bull, Jim. You WISH the MPAA used your argument. Come to think of it, I do, too. It's pretty shoddy. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 07:47:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA30012 for dvd-discuss-outgoing; Sat, 15 Jul 2000 07:47:42 -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 HAA30009 for ; Sat, 15 Jul 2000 07:47:41 -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:2.21) with ESMTP id HAA03716 for ; Sat, 15 Jul 2000 07:46:37 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA18963 for dvd-discuss@eon.law.harvard.edu; Sat, 15 Jul 2000 07:46:36 -0400 (EDT) Date: Sat, 15 Jul 2000 07:46:36 -0400 (EDT) Message-Id: <200007151146.HAA18963@soggy-fibers.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] On CSS licensing... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm seeing a lot of arguments to the effect that users aren't bound by the CSS license to treat CSS, or its components (player keys, whatever) in any particular way. Please bear in mind that this is a point which the MPAA will happily concede. Dean Marks at the Stanford hearing: 1 MR. CARSON: Okay. But, first of all, 2 there's no contractual privity between the purchaser 3 of that DVD and Time Warner, I assume. There's no 4 shrink-wrapped license. You know, you don't sign a 5 license saying, "I agree only to play this on an 6 authorized player," when you purchase the DVD. 7 MR. MARKS: That's correct. So, they're agreeing that you never signed on to their license, but they say that you can't use CSS without it, anyway. The logic used by Mr. Marks (and, more sketchily, by Leon Gold in the pretrial hearing) goes like this: 1) Reading CSS involves decryption. 2) They haven't authorized the use of CSS to perform that decryption. 3) The statutory definition of circumvention is "... to decrypt an encrypted work ... without the authority of the copyright owner". 4) Use of DeCSS, or any other non-blessed tool or technique, to read a CSS-formatted disk is circumvention, QED. If you buy all that, then it just doesn't matter whether you, as an individual purchaser of a DVD, have agreed to the license, or are even aware of its terms. So, how do we counter that? Well, 1) Circumvention, as defined in the statute, applies only to effective access controls. CSS does not effectively control access --- "in the ordinary course of its operation" it can never deny anyone access to the movie on any DVD. 2) Plaintiffs have claimed (implicitly, above; explicitly elsewhere) that the terms "effective access control process" and "encryption process" are effectively synonymous. This is just wrong. You can have access control without encryption (e.g., HTTP digest authentication). You can even have encryption used without access control --- the order pages on web shopping sites are an example (anyone can order; the encryption is to prevent orders from being observed in transit). And there is no statutory basis for the claim --- the statutory definition of circumvention allows, in the parts I ellipsized out, for processes other than decryption; the statutory definition of effective access control makes no explicit reference to encryption (or decryption, or cryptography) at all. 3) The encryption in CSS is pretextual. The whole point of encryption is to keep content away from people who aren't authorized to see it, but anyone can play any DVD in any DVD player. And the components of CSS which are described as a "cipher" by the plaintiffs aren't anything that you would ever use that way if you wanted to --- it can be cracked in less than a second on a standard PC, and provides no security. 4) Plaintiffs are attempting to bootstrap the "access control" right, granted to them by Congress, into a right to impose arbitrary restrictions on players for their work --- and through the players, on the use of the work. Region coding is an example --- this is a mechanism which has nothing to do with access control or copy control (the nominal goals of the DMCA), but the plaintiffs are imposing it nonetheless as a condition of using their "access control" technology. Congress never intended the law to be used this way --- in fact, they amended the law to try to preclude it. And there are grave Constitutional problems with any reading of the law which would permit this sort of imposition. (We got onto public disclosure, BTW, when we thought that the plaintiffs had to argue that DVD buyers *were* bound by the terms of the license, or to use DVDs in only licensed players, as some sort of contract of adhesion, but Mr. Marks has cleared that up for us --- it isn't any contract which imposes that obligation, but the law, which is binding on everybody. So it looks to me like public disclosure is irrelevant; whatever obligation they have along these lines has presumably been met by describing CSS in public technical forums where implementors of the technology --- the only ones who have to know, on this view --- can find out about it). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 08:00:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA30149 for dvd-discuss-outgoing; Sat, 15 Jul 2000 08:00:08 -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 IAA30146 for ; Sat, 15 Jul 2000 08:00:07 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id HAA04812 for ; Sat, 15 Jul 2000 07:59:04 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id HAA18152 for dvd-discuss@eon.law.harvard.edu; Sat, 15 Jul 2000 07:59:04 -0400 Date: Sat, 15 Jul 2000 07:59:04 -0400 Message-Id: <200007151159.HAA18152@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] On CSS licensing... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arrrrgh!!! I wrote (paraphrasing the plaintiffs' argument): > 1) Reading CSS involves decryption. > 2) They haven't authorized the use of CSS to perform that decryption. ^^ DeCSS > 3) The statutory definition of circumvention is "... to decrypt an > encrypted work ... without the authority of the copyright owner". > 4) Use of DeCSS, or any other non-blessed tool or technique, to > read a CSS-formatted disk is circumvention, QED. I am proofreading them! Honest! Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 14:27:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03099 for dvd-discuss-outgoing; Sat, 15 Jul 2000 14:27:46 -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 OAA03090 for ; Sat, 15 Jul 2000 14:27:45 -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:2.21) with ESMTP id OAA12199 for ; Sat, 15 Jul 2000 14:26:42 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA12230 for dvd-discuss@eon.law.harvard.edu; Sat, 15 Jul 2000 14:26:40 -0400 (EDT) Date: Sat, 15 Jul 2000 14:26:40 -0400 (EDT) Message-Id: <200007151826.OAA12230@soggy-fibers.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] A notification argument that I think I can buy... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris, here's a version of your "notification required" theory that I think I believe --- could you try it on for size? (It's from my draft, which is basically a compendium of things I wrote and still believe). The usage scenario here is simple: the user puts their DVD into a player produced by a CSS-licensed manufacturer (say, Panasonic), and pushes the ``play'' button. The DVD then plays, so if encryption is involved in CSS at all, then decryption is being performed. But who is performing it? Not Panasonic --- Panasonic did not put the disk in the player, nor did they push the ``play'' button. It is the user who performed these actions, hence the user that is decrypting the DVD. And, if we grant the plaintiffs' claim that decryption may only be performed if they grant their authority to perform it, that authority must be granted {\em to the party performing the decryption} --- which in this case is the user, not Panasonic. However, the CSS license is a contract with the player manufacturer --- with Panasonic, in our example --- not with the user. Things might be different if such a contract did exist, even if only as a contract of adhesion tied to sale of either the disk or the player. But at the Stanford Library of Congress hearing, Time-Warner's intellectual property counsel, Dean Marks, representing the MPAA, was candid in acknowledging that, in colloquy with Mr. Carson of the LOC: \begin{verbatim} 1 MR. CARSON: Okay. But, first of all, 2 there's no contractual privity between the purchaser 3 of that DVD and Time Warner, I assume. There's no 4 shrink-wrapped license. You know, you don't sign a 5 license saying, "I agree only to play this on an 6 authorized player," when you purchase the DVD. 7 MR. MARKS: That's correct. \end{verbatim} If a contractual grant of authority is required to make CSS ``decryption'' legal, then without such a contract, it is difficult to see how it is legal for DVD buyers who have no such grant to view their own DVDs. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 15:04:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18470 for dvd-discuss-outgoing; Sat, 15 Jul 2000 15:04:24 -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 PAA18439 for ; Sat, 15 Jul 2000 15:04:22 -0400 Received: from ip3.bedford2.ma.pub-ip.psi.net ([38.32.10.3]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13DXDb-0007l6-00 for dvd-discuss@eon.law.harvard.edu; Sat, 15 Jul 2000 15:03:19 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A notification argument that I think I can buy... Date: Sat, 15 Jul 2000 14:57:11 -0400 Message-ID: References: <200007151826.OAA12230@soggy-fibers.ai.mit.edu> In-Reply-To: <200007151826.OAA12230@soggy-fibers.ai.mit.edu> 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 PAA18449 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 15 Jul 2000 14:26:40 -0400 (EDT), Robert S. Thau wrote: >If a contractual grant of authority is required to make CSS >``decryption'' legal, then without such a contract, it is difficult to >see how it is legal for DVD buyers who have no such grant to view >their own DVDs. Exactly. They start out with the assumption that we're all criminals. Through 1201 they've succeeded in making us criminals. They will just let us off the hook _this_ time (each time we press play--which we're not authorized to do.) IOW, the disc itself is authorized for private home viewing, but the viewer is not authorized to cause this viewing to occur. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 15:19:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24460 for dvd-discuss-outgoing; Sat, 15 Jul 2000 15:19:43 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24457 for ; Sat, 15 Jul 2000 15:19:42 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6FJJeT32333; Sat, 15 Jul 2000 15:19:40 -0400 Date: Sat, 15 Jul 2000 15:19:40 -0400 Message-Id: <200007151919.e6FJJeT32333@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] A notification argument that I think I can buy... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau wrote: >Chris, here's a version of your "notification required" theory >that I think I believe --- could you try it on for size? (It's from my >draft, which is basically a compendium of things I wrote and still believe). > >The usage scenario here is simple: the user puts their DVD into a >player produced by a CSS-licensed manufacturer (say, Panasonic), and >pushes the ``play'' button. The DVD then plays, so if encryption is >involved in CSS at all, then decryption is being performed. But who >is performing it? Not Panasonic --- Panasonic did not put the disk in >the player, nor did they push the ``play'' button. It is the user who >performed these actions, hence the user that is decrypting the DVD. >And, if we grant the plaintiffs' claim that decryption may only be >performed if they grant their authority to perform it, that authority >must be granted {\em to the party performing the decryption} --- which >in this case is the user, not Panasonic. If a bomb goes off because I turn the key in my car, I'm reponsible. Thanks :P :) >However, the CSS license is a contract with the player manufacturer >--- with Panasonic, in our example --- not with the user. Things >might be different if such a contract did exist, even if only as a >contract of adhesion tied to sale of either the disk or the player. >But at the Stanford Library of Congress hearing, Time-Warner's >intellectual property counsel, Dean Marks, representing the MPAA, was >candid in acknowledging that, in colloquy with Mr. Carson of the LOC: > >\begin{verbatim} > 1 MR. CARSON: Okay. But, first of all, > 2 there's no contractual privity between the purchaser > 3 of that DVD and Time Warner, I assume. There's no > 4 shrink-wrapped license. You know, you don't sign a > 5 license saying, "I agree only to play this on an > 6 authorized player," when you purchase the DVD. > 7 MR. MARKS: That's correct. >\end{verbatim} > >If a contractual grant of authority is required to make CSS >``decryption'' legal, then without such a contract, it is difficult to >see how it is legal for DVD buyers who have no such grant to view >their own DVDs. > >rst Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 16:18:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26002 for dvd-discuss-outgoing; Sat, 15 Jul 2000 16:18:07 -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 QAA25999 for ; Sat, 15 Jul 2000 16:18:06 -0400 Received: from ip138.bedford2.ma.pub-ip.psi.net ([38.32.10.138]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13DYMx-0004ou-00 for dvd-discuss@eon.law.harvard.edu; Sat, 15 Jul 2000 16:17:04 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A notification argument that I think I can buy... Date: Sat, 15 Jul 2000 16:10:56 -0400 Message-ID: References: <200007151826.OAA12230@soggy-fibers.ai.mit.edu> 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 QAA26000 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 15 Jul 2000 14:57:11 -0400, I wrote: >On Sat, 15 Jul 2000 14:26:40 -0400 (EDT), Robert S. Thau wrote: > >>If a contractual grant of authority is required to make CSS >>``decryption'' legal, then without such a contract, it is difficult to >>see how it is legal for DVD buyers who have no such grant to view >>their own DVDs. > >Exactly. They start out with the assumption that we're all criminals. Through >1201 they've succeeded in making us criminals. They will just let us off the potential^ >hook _this_ time (each time we press play--which we're not authorized to do.) I'd sure like to see the CSS license aimed at resellers and assemblers (Process A) http://www.dvdcca.org/dvdcca/css/ > IOW, the disc itself is authorized for private home viewing, but the viewer is not >authorized to cause this viewing to occur. > Of course this is all ridiculous... __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 16:27:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26459 for dvd-discuss-outgoing; Sat, 15 Jul 2000 16:27:13 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA26456 for ; Sat, 15 Jul 2000 16:27:12 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id QAA09757 for ; Sat, 15 Jul 2000 16:26:09 -0400 Date: Sat, 15 Jul 2000 16:26:09 -0400 (EDT) From: Ole Craig To: DVD-discuss Subject: Re: [dvd-discuss] A notification argument that I think I can buy... In-Reply-To: <200007151919.e6FJJeT32333@tbird.iworld.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 07/15/00 at 15:19, 'twas brillig and Rares Marian scrobe: > Robert S. Thau wrote: > > >Chris, here's a version of your "notification required" theory > >that I think I believe --- could you try it on for size? (It's from my > >draft, which is basically a compendium of things I wrote and still believe). > > > >The usage scenario here is simple: the user puts their DVD into a > >player produced by a CSS-licensed manufacturer (say, Panasonic), and > >pushes the ``play'' button. The DVD then plays, so if encryption is > >involved in CSS at all, then decryption is being performed. But who > >is performing it? Not Panasonic --- Panasonic did not put the disk in > >the player, nor did they push the ``play'' button. It is the user who > >performed these actions, hence the user that is decrypting the DVD. > >And, if we grant the plaintiffs' claim that decryption may only be > >performed if they grant their authority to perform it, that authority > >must be granted {\em to the party performing the decryption} --- which > >in this case is the user, not Panasonic. > > If a bomb goes off because I turn the key in my car, I'm reponsible. Thanks :P Smileys notwithstanding, did you purchase the car (and the keys) with the understanding that bombs would go off every time you turned the key? No. The problem here is that Valenti wants to nail you with GTA[1] if you use a key that you had fabricated at the local hardware store, rather than buying spare keys from his cartel that don't work if you remove them from the cartel keychain, which happens to be bulky, wears holes in your pockets, and won't let you attach the keys to your house or your other car. (PS. This analogy, like most of the others we've seen, is obviously like a vacuum cleaner -- it sucks.) Ole [1] Grand Theft Auto -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 17:31:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29157 for dvd-discuss-outgoing; Sat, 15 Jul 2000 17:31:36 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA29154 for ; Sat, 15 Jul 2000 17:31:35 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6FLVXY04273; Sat, 15 Jul 2000 17:31:33 -0400 Date: Sat, 15 Jul 2000 17:31:33 -0400 Message-Id: <200007152131.e6FLVXY04273@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] A notification argument that I think I can buy... Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ole Craig wrote: >On 07/15/00 at 15:19, 'twas brillig and Rares Marian scrobe: >> Robert S. Thau wrote: >> > Smileys notwithstanding, did you purchase the car (and the >keys) with the understanding that bombs would go off every time you >turned the key? No. The problem here is that Valenti wants to nail you >with GTA[1] if you use a key that you had fabricated at the local >hardware store, rather than buying spare keys from his cartel that >don't work if you remove them from the cartel keychain, which happens >to be bulky, wears holes in your pockets, and won't let you attach >the keys to your house or your other car. Okay here's where things get fuzzy. A car or keychain is clearly a product. For me to be able to copy keys is an understood necessity. When you're talking about content it's a different story. I'm open to sampling mixing quoting parodying and full blown editing of any content I produce. I expect to always have the right to perform what I produce unless I willingly give up that right on PAPER signed dated and fingerprinted. Now it's a whole other story with most artists. They choose a different model which they have every right to choose. What's happening here is that while I'm buying content I must still use a product to access it. This by the way is primarily why I'm against HDCP and the rest of that nonsense. I buy a stereo. I wish to use it in a mansion that I'm dreaming about. I want song on demand by voice functions in the boiler room without the least bit of interference from cross licensing bull. I refuse to pay a license to hook up an HDCP stereo to my home network broadcasting sytem. I want to play the Four Seasons from my jacuzi, through the warble of water a la Jim Carrey in the Cable Guy(R)(C)(TM)(SM)(P). The control of content is imposed on me by controlling a product I own. However, I still see a legitimitate need for keys or some sort of authentication. I just don't think the MPAA did it properly. And they also got greedy in the process. > (PS. This analogy, like most of the others we've seen, is >obviously like a vacuum cleaner -- it sucks.) > > Ole >[1] Grand Theft Auto >-- >Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * >CS Computing Facility, UMass * for public key > > Thomas Penfield Jackson for President! Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 18:03:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29401 for dvd-discuss-outgoing; Sat, 15 Jul 2000 18:03:10 -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 SAA29398 for ; Sat, 15 Jul 2000 18:03:08 -0400 Message-ID: <20000715220136.22008.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Sat, 15 Jul 2000 15:01:36 PDT Date: Sat, 15 Jul 2000 15:01:36 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Another approach to "semantics" 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 --- Jeme A Brelin wrote: > > On Fri, 14 Jul 2000, Bryan Taylor wrote: > > Well, I'd assume you have to use the same player key as the one > > your purchased player provides. Since DeCSS uses the Xing key, > > unless you own the Xing player you're not actually space > > shifting it. > > DeCSS can use any old key you compile into it (if you take the broad > meaning of DeCSS that the Ps foist on us). Well, changing the source code would actually be creating a new and distinct derivitive program, which, being different would have to be analyzed based on it's new capabilities. I've always said one of the design flaws of DeCSS was that it didn't put the key as data in a file that is read at runtime and distributed separately. > > I don't think that an encryption key, which is just a short random > > number qualifies as an original work of authorship necessary to > > provide copyright protection alone. Copying of the unprotected > > elements does not require even "fair use" - it's simply > > something that is public domain. > > Exactly. And since we're not bound by the CSS license, we can do > whatever we want with our own implementation of CSS. > > We've got a key (legitimately REd from a player that didn't conform > with the CSS license), we've got a CSS implementation, we can make a > player and use it. > > Bryan keeps coming back and implying that we, the general public, our > somehow bound by the CSS license. Do not confuse the license with > the algorithm. I never implied this at all! (How on earth did you come to this conclusion?) I said only that the "space shifting" arguement isn't quite right, but that it doesn't matter because you don't even HAVE to prove fair use because a 40-bit random number is a functional element not protected by copyright to begin with. In fact, if you look at the decryption done by DeCSS as a three phased system, then the first two steps (extracting the disk and title keys) are not actionable under the DMCA, because the encrypted content is not a copyrighted work. Only the last step (using the title key to decrypt the .vob's involves descrambling of copyrighted elements), and it is done with the purchased title key obtained from it's legitimate source (the DVD itself). __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 15 19:41:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA31576 for dvd-discuss-outgoing; Sat, 15 Jul 2000 19:41:30 -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 TAA31573 for ; Sat, 15 Jul 2000 19:41:29 -0400 Message-ID: <20000715233957.26139.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Sat, 15 Jul 2000 16:39:57 PDT Date: Sat, 15 Jul 2000 16:39:57 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Amicus Breifs Filed in CA 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 EFF page has links to Amicus briefs filed in the CA case by the IEEE-USA and jointly by ACIS & CCIA. I'd say that these together with the defense breif and reply blow the CA case out of the water, but hey, I'm an easy sell. IEEE-USA brief: http://www.eff.org/IP/Video/DVDCCA_case/20000705_def_ieee_appeal_amicus.html ACIS & CCIA: http://www.eff.org/IP/Video/DVDCCA_case/20000628_def_ccia_appeal_amicus.html __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 08:25:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA04671 for dvd-discuss-outgoing; Sun, 16 Jul 2000 08:25:40 -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 IAA04668 for ; Sun, 16 Jul 2000 08:25:40 -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:2.21) with ESMTP id IAA23715 for ; Sun, 16 Jul 2000 08:24:34 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA08085; Sun, 16 Jul 2000 08:24:33 -0400 (EDT) Date: Sun, 16 Jul 2000 08:24:33 -0400 (EDT) Message-Id: <200007161224.IAA08085@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Amicus Breifs Filed in CA In-Reply-To: <20000715233957.26139.qmail@web514.mail.yahoo.com> References: <20000715233957.26139.qmail@web514.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I'd say that these together with the defense breif and reply blow the > CA case out of the water, but hey, I'm an easy sell. That's the problem, all right. I think we've assembled enough on authority to cold-cock them in New York, but ... rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 12:27:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA05965 for dvd-discuss-outgoing; Sun, 16 Jul 2000 12:27:03 -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 MAA05962 for ; Sun, 16 Jul 2000 12:27:02 -0400 Message-ID: <20000716162531.4722.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Sun, 16 Jul 2000 09:25:31 PDT Date: Sun, 16 Jul 2000 09:25:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Amicus Breifs Filed in CA To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > Bryan Taylor writes: > > I'd say that these together with the defense breif and reply blow > > the CA case out of the water, but hey, I'm an easy sell. > > That's the problem, all right. I think we've assembled enough on > authority to cold-cock them in New York, but ... I do think we've put the authority question into a pretty robust argument, but I still think RE and 1201(f) is actually the strongest arguement. Maybe we ought to turn our collective energy to putting a final outline of this together. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 12:33:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA06083 for dvd-discuss-outgoing; Sun, 16 Jul 2000 12:33:14 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA06080 for ; Sun, 16 Jul 2000 12:33:13 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA20808 for ; Sun, 16 Jul 2000 11:31:52 -0500 Message-ID: <3971E0FC.4CC89BC@mninter.net> Date: Sun, 16 Jul 2000 11:21:16 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Amicus Breifs Filed in CA References: <20000715233957.26139.qmail@web514.mail.yahoo.com> <200007161224.IAA08085@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 So I suppose everybody's just twiddling their thumbs until the studios dispatch their press release apologizing for all the trouble they've caused to the defendant and everyone else. The void of information has been unhelpful, but understandable. I hope that transcripts from the trial and from Shamos's deposition are released quickly enough for us to be able to work on them. Even a list of witnesses would be nice to see. Not even a peep about H2K has escaped new york. With all those hackers, I figured information would be hard to avoid. I had to go to ZDNet to read about the press briefing! Gak. http://www.zdnet.com/zdnn/stories/news/0,4586,2604177,00.html http://www.zdnet.com/zdnn/stories/comment/0,5859,2604181,00.html -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 13:56:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA06667 for dvd-discuss-outgoing; Sun, 16 Jul 2000 13:56:50 -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 NAA06664 for ; Sun, 16 Jul 2000 13:56:49 -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:2.21) with ESMTP id NAA28005 for ; Sun, 16 Jul 2000 13:55:49 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA06796; Sun, 16 Jul 2000 13:55:48 -0400 (EDT) Date: Sun, 16 Jul 2000 13:55:48 -0400 (EDT) Message-Id: <200007161755.NAA06796@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] CSS controls access to markets, not to works In-Reply-To: <200007150414.e6F4ED823929@tbird.iworld.com> References: <200007150414.e6F4ED823929@tbird.iworld.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A belated response: Rares Marian writes: > >You're being silly. When I create a web page, I don't *have* to load > >it up with MSIE-specific Javascript which blows up old versions of > >Netscape, but I can. Does that constitute an access control mechanism > >which marks only MSIE as an "authorized" player? Of course not. > > Well IE5.5 pretty much fuck^H^H^Hlouts standards so that it > controls access. It's a classic MS tactic. What you seem to be saying, here and in other places, is that CSS is access control because it controls access to a market --- the market for DVD players. You need a key to build a player; you need a license to get a key; that's access control. Well, controlling access to markets in this fashion is a crime, illegal tying. If you've been following Microsoft, you should be aware of this because they have been found guilty of that crime. (And that's due largely, in fact, to their shenaningans in the browser market; a key point in the case was that they tied MSIE to Windows.) Which does make for a good new argument that CSS is not 1201(a) access control --- it controls access to markets, not access to works. (It doesn't control access to works because, as we've been through before, it doesn't keep any DVD from playing in any player; nobody is denied access to the contents of any DVD by the action of CSS). My list of these arguments now stands at: *) Pretextual, false encryption *) Encryption not required for access control; any process could be regulated *) Authority not granted to the party performing the ``decryption'' *) Access controlled is access to a market, not access to a work *) Inconsistent with Congressional intent *) Inconsistent with Constitutional principles *) These problems inhere only to the plaintiffs' reading, not to the straightforward reading of 1201(a) which asserts that it protects only measures which control access to works. If anyone is curious about what's behind the bullet points, see http://www.ai.mit.edu/people/rst/dmca/auth/auth.html which has direct links to the respective arguments. In particular, the legislative history part shows that Congress did not intend the law to let copyright holders control access to the player market, and in fact, tried to amend the law to preclude that interpretation. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 19:08:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA07571 for dvd-discuss-outgoing; Sun, 16 Jul 2000 19:08:29 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA07568 for ; Sun, 16 Jul 2000 19:08:27 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PSXA>; Sun, 16 Jul 2000 19:12:06 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E4D@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] ntsc only? Date: Sun, 16 Jul 2000 19:12:05 -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 was checking out DVDs at a local store and found a curious warning on the back: "Although this DVD is not region coded, it will only play in an NTSC equipped DVD player." How is that being enforced? What does an NTSC player do differently than a PAL player? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 19:20:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA07667 for dvd-discuss-outgoing; Sun, 16 Jul 2000 19:20:38 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA07664 for ; Sun, 16 Jul 2000 19:20:37 -0400 Received: from 216-164-134-151.s405.tnt3.lnhva.md.dialup.rcn.com ([216.164.134.151]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13DxhB-0004Ba-00 for dvd-discuss@eon.law.harvard.edu; Sun, 16 Jul 2000 19:19:38 -0400 Date: Sun, 16 Jul 2000 19:19:31 EDT From: jeremy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ntsc only? X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 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 On Sun, 16 Jul 2000, Leland Ray wrote: > I was checking out DVDs at a local store and found a > curious warning on the back: > "Although this DVD is not region coded, it will only > play in an NTSC equipped DVD player." > How is that being enforced? What does an NTSC player > do differently than a PAL player? >From the DVD Faq (http://www.dvddemystified.com/dvdfaq.html#1.19) DVD has the same NTSC vs. PAL problem as videotape and laserdisc. The MPEG video on DVD is stored in digital format, but it's formatted for one of two mutually incompatible television systems: 525/60 (NTSC) or 625/50 (PAL/SECAM). There are three differences between discs intended for playback on different systems: picture size and pixel aspect ratio (720x480 vs. 720x576), display frame rate (29.97 vs. 25), and surround audio (Dolby Digital vs. MPEG). (See 3.4 and 3.6 for details.) Video from film is usually encoded at 24 frames/sec but is preformatted for one of the two display rates. Movies formatted for PAL display are usually sped up by 4%, so the audio must be adjusted accordingly before being encoded. All PAL DVD players can play Dolby Digital audio tracks, but not all NTSC players can play MPEG audio tracks. PAL and SECAM share the same scanning format, so discs are the same for both systems. The only difference is that SECAM players output the color signal in the format required for SECAM TVs. Some players only play NTSC discs, some players only play PAL discs, and some play both. All DVD players sold in PAL countries play both. [material removed for brevity] Because the quality of conversion in DVD players is poor, using 60Hz PAL output with a compatible TV provides a better picture. I don't think it will matter to computer users, though. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 16 23:56:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11580 for dvd-discuss-outgoing; Sun, 16 Jul 2000 23:56:42 -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 XAA11577 for ; Sun, 16 Jul 2000 23:56:42 -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 XAA11778 for ; Sun, 16 Jul 2000 23:55:41 -0400 (EDT) Message-Id: <4.1.20000716170359.01bcd4d0@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sun, 16 Jul 2000 23:56:00 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] New York trial to begin Monday, July 17 Mime-Version: 1.0 Content-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 moment we've all been wating for... Trial of Universal v. Corley begins before Judge Kaplan (a bench trial, no jury) at 10 a.m. Monday, July 17. Kaplan will be deciding the legality under the DMCA of both posting and linking to DeCSS. For anyone planning to attend, it's in the Southern District Federal Courthouse, 500 Pearl Street, Courtroom 12D. After opening statements from both sides, plaintiffs will begin their case-in-chief with witnesses Fritz Attaway (MPAA general counsel), Robert Schumann (technical expert), and Michael Shamos (he of the DivX ;-) creation). Expect withering cross-examinations by Garbus and Hernstadt, based in part on the holes list-members have picked in the plaintiffs' technical evidence. The trial is expected to last about 10 days. Good recent news articles with overviews of the issues from Newsday and the NY Times We'll be looking for updates from the front. --Wendy (apologies for my limited posting here recently, I'll actually be at a hearing in White Plains Monday) --- 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 Mon Jul 17 00:23:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11987 for dvd-discuss-outgoing; Mon, 17 Jul 2000 00:23:42 -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 AAA11984 for ; Mon, 17 Jul 2000 00:23:41 -0400 Message-ID: <20000717042207.29956.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Sun, 16 Jul 2000 21:22:07 PDT Date: Sun, 16 Jul 2000 21:22:07 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Johansen admits writing DeCSS 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 In an interesting article previewing the DVD case, Rita Ciolli threw out this tidbit: "Johansen, in his first public remarks about breaking the code, acknowledged on Friday that he wrote the application and posted it on his site" http://www.newsday.com/coverage/current/news/sunday/nd1474.htm __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 00:46:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA12868 for dvd-discuss-outgoing; Mon, 17 Jul 2000 00:46:18 -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 AAA12865 for ; Mon, 17 Jul 2000 00:46:17 -0400 Received: from ip59.bedford3.ma.pub-ip.psi.net ([38.32.11.59]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13E2mM-000134-00 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Jul 2000 00:45:18 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New York trial to begin Monday, July 17 Date: Mon, 17 Jul 2000 00:39:11 -0400 Message-ID: References: <4.1.20000716170359.01bcd4d0@law.harvard.edu> In-Reply-To: <4.1.20000716170359.01bcd4d0@law.harvard.edu> 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 AAA12866 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Good recent news articles with overviews of the issues from >Newsday >and the NY Times Rita has written a great explication of the case; one that's accessible to anyone. Refer your friends--those whose eyes glaze over at the mention of DeCSS--here. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 02:24:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA13153 for dvd-discuss-outgoing; Mon, 17 Jul 2000 02:24:19 -0400 Received: from mtiwmhc27.worldnet.att.net (mtiwmhc27.worldnet.att.net [204.127.131.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA13150 for ; Mon, 17 Jul 2000 02:24:18 -0400 Received: from [12.88.228.4] ([12.88.228.177]) by mtiwmhc27.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000717062318.XXTL14052.mtiwmhc27.worldnet.att.net@[12.88.228.4]> for ; Mon, 17 Jul 2000 06:23:18 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 17 Jul 2000 02:23:06 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] New Depositons Available Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following depositions are now available in EFF's MPAA cases archive: Emmanuel Goldstein: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000627_ny_goldstein_dep.html Andrew Appel: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000629_ny_appel_dep.html Edward Felton: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000707_ny_felton_dep.html Chris DiBona: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000708_ny_dibona_dep.html Barbara Simons: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000708_ny_simons_dep.html Thanks, Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 03:00:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA13311 for dvd-discuss-outgoing; Mon, 17 Jul 2000 03:00:07 -0400 Received: from rasputin.xilix.com (root@rasputin.xilix.com [195.139.104.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA13308 for ; Mon, 17 Jul 2000 03:00:04 -0400 Received: from trustix.com (singsing.trustix.com [195.139.104.158]) by rasputin.xilix.com (8.9.3/8.9.3) with ESMTP id IAA05278 for ; Mon, 17 Jul 2000 08:55:31 +0200 Message-ID: <3972AEAB.2BBC83C0@trustix.com> Date: Mon, 17 Jul 2000 08:58:51 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.4.0-t3 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Johansen admits writing DeCSS References: <20000717042207.29956.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: > > In an interesting article previewing the DVD case, Rita Ciolli threw > out this tidbit: > > "Johansen, in his first public remarks about breaking the code, > acknowledged on Friday that he wrote the application and posted it on > his site" Depends on what "the application" is. In Norwegian media, he has never claimed that he wrote anything else than a Windows GUI/wrapper around the DeCSS routines. The tabloid newspapers, in their flurry to cast him as a "young hacker genious", did of course manage to miss this. -- LarsG. These are my opinions, which may or may not be shared by my employer. Code that cracks a protection device is criminal under the DMCA even if the use of the copyrighted material that the code enables would be fair use. - Lawrence Lessig, Berkman Professor of Law, Harward Law School. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 06:21:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA16014 for dvd-discuss-outgoing; Mon, 17 Jul 2000 06:21:43 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA16011 for ; Mon, 17 Jul 2000 06:21:42 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13E80w-0007uz-00; Mon, 17 Jul 2000 03:20:42 -0700 Date: Mon, 17 Jul 2000 03:20:42 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Reuters pre-trial coverage Message-ID: <20000717032042.A30421@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://dailynews.yahoo.com/h/nm/20000716/tc/film_hackers_dc_1.html On the "top stories" page at Yahoo! Daily News. Very depressing: Sunday July 16 10:21 PM ET New York Court Case Pits Hollywood Vs. Hackers By Eric Auchard NEW YORK (Reuters) - The motion picture industry hopes to stem a potential flood of digital video piracy in a civil case set to open on Monday in which Hollywood studios have accused a computer journalist of violating a still untested 1998 federal law that aims to protect digital media. Eric Corley, publisher of 2600 ([30]http://www.2600.org), a top magazine and Web site of the computer hacker underground, is set to stand trial for spreading a utility that allows digital video disks (DVDs) to be copied and transmitted over the Web. The plaintiffs in the case, which include Hollywood's eight biggest movie studios -- Universal, MGM, Time-Warner and their rivals -- are seeking to stop Corley from republishing the software code that unlocks the media scrambling within DVDs. The trial will take place in federal court in Manhattan before U.S. District Judge Lewis Kaplan. [...] This reporter does mention the views of the defendants, but seems to have bought the plaintiffs' characterization of DeCSS. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 09:13:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA17623 for dvd-discuss-outgoing; Mon, 17 Jul 2000 09:13:51 -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 JAA17620 for ; Mon, 17 Jul 2000 09:13:50 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13EAhW-0005kU-00; Mon, 17 Jul 2000 15:12:50 +0200 Received: from localhost by sites.inka.de with local id 13EAhX-0006He-00; Mon, 17 Jul 2000 15:12:51 +0200 Date: Mon, 17 Jul 2000 15:12:51 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] EFF Moves to Disqualify Kaplan Message-ID: <20000717151251.A23288@inka.de> References: <20000717032042.A30421@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000717032042.A30421@zork.net>; from schoen@loyalty.org on Mon, Jul 17, 2000 at 03:20:42AM -0700 X-Curiosity: Ignorance killed the cat, curiosity was framed. X-DeCSS: TIMCODMI Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.eff.org/Intellectual_property/Video/20000715_dvd_update.html Sham -- http://sites.inka.de/risctaker/DeCSS/ "The war is never competely won. There are always new battles to be fought against the darkness. Only the names change." (Ambassador Delenn, Babylon 5) From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 09:45:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA17934 for dvd-discuss-outgoing; Mon, 17 Jul 2000 09:45:32 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA17931 for ; Mon, 17 Jul 2000 09:45:31 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id JAA14594; Mon, 17 Jul 2000 09:45:27 -0400 Message-ID: <39730DF7.BDC101CC@mit.edu> Date: Mon, 17 Jul 2000 09:45:27 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF Moves to Disqualify Kaplan References: <20000717032042.A30421@zork.net> <20000717151251.A23288@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: > > http://www.eff.org/Intellectual_property/Video/20000715_dvd_update.html > > Sham > > -- > http://sites.inka.de/risctaker/DeCSS/ > > "The war is never competely won. There are always new battles > to be fought against the darkness. Only the names change." > (Ambassador Delenn, Babylon 5) This looks like good news. As the release says, Kaplan advised Time Warner about DVDs and antitrust law. I don't see how he could be an impartial judge after that. It certainly puts the many "Kaplan doesn't get it yet" incidents in a new perspective. I can't believe this didn't come out before now. Can anyone comment on the likelihood of disqualification? For bad news, check out today's Wall Street Journal. Another bad DivX article (arguing that DivX will Napsterize movies), mentioning DeCSS as a program that helps people make DivXs. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:03:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18559 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:03:10 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA18555 for ; Mon, 17 Jul 2000 10:03:09 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HE36K19684; Mon, 17 Jul 2000 10:03:06 -0400 Date: Mon, 17 Jul 2000 10:03:06 -0400 Message-Id: <200007171403.e6HE36K19684@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Page Not Found!Re: [dvd-discuss] New York trial to begin Monday, July 17 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson wrote: >>Good recent news articles with overviews of the issues from >>Newsday >>and the NY Times > >Rita has written a great explication of the case; one that's accessible to anyone. >Refer your friends--those whose eyes glaze over at the mention of DeCSS--here. It's gone. > __________no-∞-do__________ Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:05:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18676 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:05:41 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA18673 for ; Mon, 17 Jul 2000 10:05:40 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HE5bP19914; Mon, 17 Jul 2000 10:05:37 -0400 Date: Mon, 17 Jul 2000 10:05:37 -0400 Message-Id: <200007171405.e6HE5bP19914@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Stories Missing!Re: [dvd-discuss] New York trial to begin Monday, July 17 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >The moment we've all been wating for... > >Trial of Universal v. Corley begins before Judge Kaplan (a bench trial, no >jury) at 10 a.m. Monday, July 17. Kaplan will be deciding the legality >under the DMCA of both posting and linking to DeCSS. >For anyone planning to attend, it's in the Southern District Federal >Courthouse, 500 Pearl Street, Courtroom 12D. > >After opening statements from both sides, plaintiffs will begin their >case-in-chief with witnesses Fritz Attaway (MPAA general counsel), Robert >Schumann (technical expert), and Michael Shamos (he of the DivX ;-) >creation). Expect withering cross-examinations by Garbus and Hernstadt, >based in part on the holes list-members have picked in the plaintiffs' >technical evidence. The trial is expected to last about 10 days. > >Good recent news articles with overviews of the issues from >Newsday >and the NY Times > > >We'll be looking for updates from the front. > >--Wendy >(apologies for my limited posting here recently, I'll actually be at a >hearing in White Plains Monday) >--- >Wendy Seltzer >wendy@seltzer.com >Fellow, Berkman Center for Internet & Society at Harvard Law School >http://cyber.law.harvard.edu/seltzer.html Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:08:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18762 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:08:59 -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 KAA18759 for ; Mon, 17 Jul 2000 10:08:57 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13EBYs-0007KP-00; Mon, 17 Jul 2000 16:07:58 +0200 Received: from localhost by sites.inka.de with local id 13EBYt-0006hT-00; Mon, 17 Jul 2000 16:07:59 +0200 Date: Mon, 17 Jul 2000 16:07:59 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: Page Not Found!Re: [dvd-discuss] New York trial to begin Monday, July 17 Message-ID: <20000717160759.B23288@inka.de> References: <200007171403.e6HE36K19684@tbird.iworld.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007171403.e6HE36K19684@tbird.iworld.com>; from rmarian@linuxstart.com on Mon, Jul 17, 2000 at 10:03:06AM -0400 X-Curiosity: Ignorance killed the cat, curiosity was framed. X-DeCSS: TIMCODMI Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 17, 2000 at 10:03:06AM -0400, Rares Marian wrote: > Ron Gustavson wrote: > > >>Good recent news articles with overviews of the issues from > >>Newsday > >>and the NY Times > > > >Rita has written a great explication of the case; one that's accessible to anyone. > >Refer your friends--those whose eyes glaze over at the mention of DeCSS--here. > > It's gone. It's still there for me. Sham -- http://sites.inka.de/risctaker/DeCSS/ "The war is never competely won. There are always new battles to be fought against the darkness. Only the names change." (Ambassador Delenn, Babylon 5) From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:13:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18812 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:13:09 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA18809 for ; Mon, 17 Jul 2000 10:13:08 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HED5o20446; Mon, 17 Jul 2000 10:13:05 -0400 Date: Mon, 17 Jul 2000 10:13:05 -0400 Message-Id: <200007171413.e6HED5o20446@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: Page Not Found!Re: [dvd-discuss] New York trial to begin Mond ay, July 17 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.newsday.com/coverage/current/news/sunday/nd1474.htm Browser fart. Anjul Srivastava wrote: >It's still there. Just checked it... > >-----Original Message----- >From: Rares Marian [mailto:rmarian@linuxstart.com] >Sent: Monday, July 17, 2000 9:03 AM >To: DVD-discuss >Subject: Page Not Found!Re: [dvd-discuss] New York trial to begin >Monday, July 17 > > >Ron Gustavson wrote: > >>>Good recent news articles with overviews of the issues from >>>Newsday >>>and the NY Times >> >>Rita has written a great explication of the case; one that's accessible to >anyone. >>Refer your friends--those whose eyes glaze over at the mention of >DeCSS--here. > >It's gone. > >> __________no-∞-do__________ > > >Windows the other 70's technology. >---------------------- >Do you do Linux? :) >Get your FREE @linuxstart.com email address at: http://www.linuxstart.com Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:22:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18891 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:22:22 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA18888 for ; Mon, 17 Jul 2000 10:22:21 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HEMIV21107; Mon, 17 Jul 2000 10:22:18 -0400 Date: Mon, 17 Jul 2000 10:22:18 -0400 Message-Id: <200007171422.e6HEMIV21107@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 , DVD-discuss Subject: [dvd-discuss] Links Munged Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian wrote: >Wendy Seltzer wrote: > > >>The moment we've all been wating for... >> >>Trial of Universal v. Corley begins before Judge Kaplan (a bench trial, no >>jury) at 10 a.m. Monday, July 17. Kaplan will be deciding the legality >>under the DMCA of both posting and linking to DeCSS. >>For anyone planning to attend, it's in the Southern District Federal >>Courthouse, 500 Pearl Street, Courtroom 12D. >> >>After opening statements from both sides, plaintiffs will begin their >>case-in-chief with witnesses Fritz Attaway (MPAA general counsel), Robert >>Schumann (technical expert), and Michael Shamos (he of the DivX ;-) >>creation). Expect withering cross-examinations by Garbus and Hernstadt, >>based in part on the holes list-members have picked in the plaintiffs' >>technical evidence. The trial is expected to last about 10 days. >> >>Good recent news articles with overviews of the issues from >>Newsday >>and the NY Times >> >> >>We'll be looking for updates from the front. >> >>--Wendy >>(apologies for my limited posting here recently, I'll actually be at a >>hearing in White Plains Monday) >>--- >>Wendy Seltzer >>wendy@seltzer.com >>Fellow, Berkman Center for Internet & Society at Harvard Law School >>http://cyber.law.harvard.edu/seltzer.html Anyone else having a problem wit this use these: http://www.newsday.com/coverage/current/news/sunday/nd1474.htm http://www.nytimes.com/library/tech/00/07/cyber/cyberlaw/14law.html Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 10:35:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA19152 for dvd-discuss-outgoing; Mon, 17 Jul 2000 10:35:14 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA19149 for ; Mon, 17 Jul 2000 10:35:13 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id KAA14263 for ; Mon, 17 Jul 2000 10:34:15 -0400 Date: Mon, 17 Jul 2000 10:34:15 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF Moves to Disqualify Kaplan In-Reply-To: <20000717151251.A23288@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 07/17/00 at 15:12, 'twas brillig and Sham Gardner scrobe: > > http://www.eff.org/Intellectual_property/Video/20000715_dvd_update.html One wonders whether the fact that this particular case landed in Kaplan's court is too great a burden for poor, tired Happenstance to bear... Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 11:32:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA20212 for dvd-discuss-outgoing; Mon, 17 Jul 2000 11:32:04 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA20209 for ; Mon, 17 Jul 2000 11:32:03 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id KAA04917 for ; Mon, 17 Jul 2000 10:30:44 -0500 Message-ID: <397326FD.1C6E753A@mninter.net> Date: Mon, 17 Jul 2000 10:32:13 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] EFF Moves to Disqualify Kaplan 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 Ole Craig wrote: > One wonders whether the fact that this particular case landed > in Kaplan's court is too great a burden for poor, tired Happenstance > to bear... In more conspiratorial news, it calls to question his insistance on expedited discovery. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 12:29:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20841 for dvd-discuss-outgoing; Mon, 17 Jul 2000 12:29:10 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20838 for ; Mon, 17 Jul 2000 12:29:09 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA27117 for ; Mon, 17 Jul 2000 09:28:06 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma026788; Mon, 17 Jul 00 09:27:22 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA09440; Mon, 17 Jul 2000 10:27:21 -0600 From: "John Zulauf" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 17 Jul 2000 10:29:07 -0600 Message-ID: <000001bff00c$20f27e60$87ce0593@ia.nsc.com> 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 4.71.2377.0 X-Mimeole: Produced By Microsoft MimeOLE V5.00.2615.200 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu : == "Jim Taylor" Fri, 14 Jul 2000 16:03:26 -0700 > == John Zulauf, on Friday, July 14, 2000 2:41 PM, wrote > >**The DCMA case if Perry Mason were involved: (Def= Defense counsel, WfP= >Witness for prosection) :Revised screenplay, with smarter defendant: Look I wasn't taking this too seriously in the first place. I understand a good witness could make life tougher... but has still left some huge holes. Essentially you have to build up the image of what a non-pretextual (Divx for example) TPM does. Build up the image of CSS as a no-op (a safe with the key welded into the lock). Can't prevent copies, can't prevent wholesale piracy... et. al. Focus on how CSS does or does not authorize the USER -- and therefore cannot be a system for conveying authority. For example, revise the next question... the focus is on the USER authorization. The PLAYER authorization is a red herring -- don't let them go there on cross --- sheesh! !Def: Then how does it establish the authority of the user to access the disk? : WfP: By expecting that only an authorized player and an authorized copy of : the work (encrypted, with CSS disc and title keys) will pass the CSS : algorithm. : Def: That doesn't answer the question. How does CSS establish the authority of the USER to access the work? : WfP: The user has an authorized player. Wonderfully circular. The player authorizes play because it exsists and is authorized? Follow-up regarding how the user knows about the authority model, etc. The anti-trust door is opened here too! Here's an example of a smoking gun even with your "smarter" WfP >Def: Does CSS require the user to attach a "dongle" -- conversation describe >a dongle :WfP: That's silly. CSS is a dongle that's built into the player. Hello? Silly? A built-in dongle? No such thing -- THAT's silly! (ask for examples -- can't find any?) A built in dongle is no dongle at all. The cipher **must** be separate from the work or the player! Dongles are to be programmed for **specific** works -- this is a blanket dongle. This doesn't pass the giggle test. (the giggle-at-the-dongle test? hmmmm) >Def: Does it perform some tests to see if a user is authorized to access a >work? : WfP: No, how could CSS test the user? It can't tell if the disc is stolen, : for example. the WfP doesn't want to start describing the weaknesses of the system... doubt they'd go there... if they do ram the "non-effective" down their throat by identifying that it is a system that can't prevent or detect copies, and does nothing to establish the right of a particular user to a particular work except mere possession of disk a player -- no more that a CD (and non-TPM) system does. !Obvious follow-ups. !Def: Can it tell if the disc is pirated? !WfP: No. !Def: Are familiar with the Divx standard marketed by Circuit City follow this with a series of questions that lead the witness through a "real" authorization system -- Divx -- or use this a the door to introduce evidence on examples of effective TPM's : Def: But what about pirated discs? : WfP: CSS can't protect from piracy. That's covered under separate laws. I don't think they want to go here either. Look, either CSS is copy protection or it isn't. If the disks can be pirated without circumventing CSS then CSS isn't copy protection. It's like claiming you have a .22 caliber elephant gun. If it can't shoot elephants, it's no elephant gun. A system (in Dean Marks words) that "keeps honest people honest" is a pretext -- or in the words of "Sony" not significant. It's flu shot (with nasty side-effects) that only prevents undetectably mild cases of the flu. It's saying that you have a copy protection system the doesn't protect the work against copying. Here's a thought about TPM effectiveness and how to measure it based on the behavior of the copyright holder. The effectiveness of a TPM is inversely proportional to the level of effort expended by a copyright holder to prevent bit-for-bit piracy of the TPM'd work. If I have a 100% effective TPM, piracy will only tend to reduce my costs (as the pirate is producing and distribution the cyphertext work at their cost) and increase my revenues (revenues selling physical media of the work are likely low, since the value is in the separate sale of authenication). In other words if I have a perfect pay-per-view (PPV) system, the greater the number of physical copies the greater the "total available market" for PPV revenues, and piracy is not an issue. (Perhaps there would be lost licensing fee for the publisher of the physical media, but this is clearly 2nd order effect). Conversely if I have a 0% effective TPM (or none, e.g. CD's) illegal duplication of the physical media is of primary concern, since all my revenues are derived from the sales of the physical media. Now, look at the behavior of the MPAA. Are they acting like the the 100% effective or 0% effective case. Clearly the latter. From this we can infer that the MPAA -- in agressively pursuing DVD physical media pirates -- demonstrates that it does not believe they have an effective TPM in CSS. If they do not believe this, why should the courts? >Def: Does CSS require the user enter a password? :WfP: No. How would that establish authority? The password could be stolen or :the work could be an illegal copy. Point out that the password theft is a separate act from the piracy and that an illegal copy won't work without the password. Build the case for what a non-pretextual system is -- and that CSS doesn't meet this standard. Keep repeating the chorus : "effective encryption requires a cipher separate of the work or the player." Better than that, force THEM to establish what "effective" means under 1201. "Effective" cannot be "because I say so." Also, challenge this with a set of questions to anwser his question "How would that establish authority." Mere possesion of a licensed player "how would that establish authority?" -- expose the circular pretext of "because we say so" especially they never "said so" to the end-user (ex post issues). Attack the sense in which a licensed player provides authority. Just what authority is that? What are it's limits? How is the user informed of these limits? How (legally) are these limits imposed? :Def: Hmm, I suppose that this entire tack on authorization of the user :hasn't really gotten me anywhere, since it would be unreasonable to require :DVD players to evaluate the authority of the user each time they attempt to :access a work. What are you talking about? Lexis/Nexis, Divx, news services, published secure databases (on CD), Divx, et. al. ALL make these checks by one way or another separate from the work or the player. This is the essence of a TPM. You can't just give the P's a pass on this one. THEY must establish they have an effective TPM. Letting them off the hook on this because "gee, I guess that's too hard to do right," defies logic and numerous counter examples. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 13:06:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21466 for dvd-discuss-outgoing; Mon, 17 Jul 2000 13:06:26 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA21463 for ; Mon, 17 Jul 2000 13:06:23 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id KAA16140 for ; Mon, 17 Jul 2000 10:05:21 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma015636; Mon, 17 Jul 00 10:04:06 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id LAA13878; Mon, 17 Jul 2000 11:04:01 -0600 From: "John Zulauf" To: Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 17 Jul 2000 11:05:47 -0600 Message-ID: <000101bff011$4045f4e0$87ce0593@ia.nsc.com> 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 4.71.2377.0 X-Mimeole: Produced By Microsoft MimeOLE V5.00.2615.200 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu To: Subject: RE: [dvd-discuss] Another approach to "semantics" From: "Jim Taylor" Date: Fri, 14 Jul 2000 17:46:50 -0700 Importance: Normal In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1CFE@mail2.onetouch.com> Reply-To: dvd-discuss@eon.law.harvard.edu Sender: owner-dvd-discuss@eon.law.harvard.edu ---------------------------------------------------------------------------- ---- Richard Hartman, on Friday, July 14, 2000 5:03 PM, wrote >>There is no difference >>to the user in playing a DVD (supposedly controlled) and >>playing a CD (not controlled). From: "Jim Taylor" > From an aesthetics point of view, there should be no difference to the user. You're right about aesthetics. I'm sure the aesthetics of the user-experience had a good deal to do with the decision to build an automated system. The problem is, in their drive to have aesthetic authentication, the left out the authentication part. > They should not have to know or care that DVD has a TPM and CD does not. Too bad that doesn't function in reality. If you REALLY want to impose a TPM and authorize use -- the user has to know, either contractual or by some activity. Aesthetically, I'd like to not have to have a key to open my car. Everytime I want to use my car I have to authenticate my use. It's a bummer (especially since when I lock my self out), but the locks on my car are a TPM for access to my car. When a TPM is in place, keys have to be separate from the thing that is protected. Trying taping the keys to your car in a bad neighborhood (or at the mall) and see what happens. These keys must be distinct from the player (as it comes OOB) and the media. If I don't have these things I don't have a TPM. A automatic dial-up system or a first time insert and type in your key (like a PC application install) and have the player remember would probably be non-pretextual (or less so). CSS is dehydrated water -- "I've invented a soft drink you can't spill." However it left out the important essence in process. Other examples of too much automation. ** An alarm system which remembers my password, so I don't have to type it in. Just press enter. ** A safe with the dial motorized with the combination (just press play!) Entering authenication information is a pain -- but without it, no non-pretextual TPM. > But when they attempt to copy a DVD they'll run into problems (unlike > copying a CD). This is pure fabrication on the part of the P's. Home equipment in the US has trouble, but the commercial pirates have NO TROUBLE copying DVD's. The MPAA must keep up the pretense, as they cannot admit to have foisted a costly pretextual system on the consumer, and defrauded the P's (unless of course they were complicitous in the formation of the DVD player license monopoly). > DeCSS is caught right in the middle. Some claim it's > a device for copying discs, others claim it's a device to enable > playing discs. DeCSS (as the P's have defined) is variously the Win32 app, the DeCSS kernel in LiViD, etc. The former decrypts a DVD onto your hard drive (that's actually NOT a copy of the DVD -- few bits are the same) the latter plays DVD's. Neither of these is a copy mechanism or useful or practical for pirating DVD's. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 13:19:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21638 for dvd-discuss-outgoing; Mon, 17 Jul 2000 13:19:38 -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 NAA21635 for ; Mon, 17 Jul 2000 13:19:35 -0400 Message-ID: <20000717171803.13213.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Mon, 17 Jul 2000 10:18:03 PDT Date: Mon, 17 Jul 2000 10:18:03 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] EFF Moves to Disqualify Kaplan 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 Oh my GOD!! If these allegations are true, Kaplan should be impeached and removed from office. A judge has a moral obligation to recuse himself if he has any prior connection to either party in a lawsuit that could bias his rulings. And Kaplan's rulings have clearly been biased. No wonder he wanted to bring discovery to a close and start the trial early. --- Ravi Nanavati wrote: http://www.eff.org/Intellectual_property/Video/20000715_dvd_update.html > This looks like good news. As the release says, Kaplan > advised Time Warner about DVDs and antitrust law. I don't > see how he could be an impartial judge after that. > It certainly puts the many "Kaplan doesn't get it yet" > incidents in a new perspective. I can't believe this didn't > come out before now. Can anyone comment on the likelihood > of disqualification? > > For bad news, check out today's Wall Street Journal. > Another bad DivX article (arguing that DivX will > Napsterize movies), mentioning DeCSS as a program > that helps people make DivXs. > > - Ravi Nanavati __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 13:39:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22079 for dvd-discuss-outgoing; Mon, 17 Jul 2000 13:39:14 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22076 for ; Mon, 17 Jul 2000 13:39:12 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HHdUN12397; Mon, 17 Jul 2000 13:39:30 -0400 Date: Mon, 17 Jul 2000 13:39:30 -0400 Message-Id: <200007171739.e6HHdUN12397@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Another approach to semantics Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf wrote: >!Def: Then how does it establish the authority of the user to access the >disk? >: WfP: By expecting that only an authorized player and an authorized copy of >: the work (encrypted, with CSS disc and title keys) will pass the CSS >: algorithm. >: Def: That doesn't answer the question. How does CSS establish the >authority of the USER to access the work? >: WfP: The user has an authorized player. > >Wonderfully circular. The player authorizes play because it exsists and is >authorized? I'll try countering this (have no idea how considering the MPAA can't pick an argument and stick with it, it's like playing the stock market): What I would have done in their place: Setup a review board that authorizes devices by their function. This is pure market control. Control the devices to control content. We have many Industry Standard oganizations. Let's assume there's room for the DVDCCA. The key here is they can only make decisions on features that are relevant to their powers over content. That is they have limited powers to discriminate between legitimate devices and "paraphernalia". Now we have two varieties of devices, the players and the writers. License both software and hardware in such a way that they don't allow copying. And that's it. The user then is out of the picture and you can tell copied discs from originals by marking discs. The Game industry played with false bad sectors. And it worked to an extent. Your WfP could have responded: the user does not need to be authorized. The user can do whatever he/she wants. However unlicensed products will not be supported nor endorsed. They blew it. Now it's feeding time. >Follow-up regarding how the user knows about the authority model, etc. The >anti-trust door is opened here too! > >Here's an example of a smoking gun even with your "smarter" WfP >Hello? Silly? A built-in dongle? No such thing -- THAT's silly! (ask for >examples -- can't find any?) A built in dongle is no dongle at all. The >cipher **must** be separate from the work or the player! Dongles are to be >programmed for **specific** works -- this is a blanket dongle. This doesn't >pass the giggle test. (the giggle-at-the-dongle test? hmmmm) The shape of your keyhole in your lock is a dongle. You're not focussing on function. Function is how most people define objects. That's going to be a factor we'll be dealing with in court. I do believe it's possible to build a blanket dongle. I just believe they never intended to do that. They just played the whole industry. >I don't think they want to go here either. Look, either CSS is copy >protection or it isn't. If the disks can be pirated without circumventing >CSS then CSS isn't copy protection. It's like claiming you have a .22 >caliber elephant gun. If it can't shoot elephants, it's no elephant gun. No it's claiming you have a spoon shaped elephant gun. >From this we can infer that the MPAA -- in agressively pursuing >DVD physical media pirates -- demonstrates that it does not believe they >have an effective TPM in CSS. If they do not believe this, why should the >courts? The pirates (assuming they had followed through as I metioned above, which they didn't) are the device producers not the device users. They missed the boat on that one too. They're trying to cover their ass assuming their point is "understood". The whole case would be different if: 1. They explicitly said you cannot play with anything but a licensed software or hardware player. 2. They limited the limits on the software and hardware players to Federal limits on licensing limits. 3. A player could become licensed by public review of functionality. Not by a purchase of a license. They barely did the first. They did neither 2 nor 3. Screw em. This is amusing. If they had played nicely they WOULD HAVE A CASE. I even know exactly how I would defend them. But all they did was blow smoke all the way through. >>Def: Does CSS require the user enter a password? >:WfP: No. How would that establish authority? The password could be stolen >or >:the work could be an illegal copy. >Point out that the password theft is a separate act from the piracy and that >an illegal copy won't work without the password. The password could be stolen. If the password is stolen the illegal copy works. Why else are there serial number sites for software? >Build the case for what a non-pretextual system is -- and that CSS doesn't >meet this standard. Keep repeating the chorus : "effective encryption >requires a cipher separate of the work or the player." Better than that, >force THEM to establish what "effective" means under 1201. "Effective" >cannot be "because I say so." Effective can be a weak but functional component. But they have neither. >How (legally) are these limits imposed? They're not. The RE issue is going to blow them to pieces. >:DVD players to evaluate the authority of the user each time they attempt to >:access a work. > >What are you talking about? Lexis/Nexis, Divx, news services, published >secure databases (on CD), Divx, et. al. ALL make these checks by one way or >another separate from the work or the player. This is the essence of a TPM. >You can't just give the P's a pass on this one. THEY must establish they >have an effective TPM. Letting them off the hook on this because "gee, I >guess that's too hard to do right," defies logic and numerous counter >examples. Unix filesystems :) Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 13:56:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA22276 for dvd-discuss-outgoing; Mon, 17 Jul 2000 13:56:17 -0400 Received: from mtiwmhc27.worldnet.att.net (mtiwmhc27.worldnet.att.net [204.127.131.52]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA22273 for ; Mon, 17 Jul 2000 13:56:16 -0400 Received: from [12.88.230.6] by mtiwmhc27.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000717175447.CUZE14052.mtiwmhc27.worldnet.att.net@[12.88.230.6]> for ; Mon, 17 Jul 2000 17:54:47 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 17 Jul 2000 13:54:34 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Recusal Motion documents Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following documents are now available in the EFF MPAA archives: (Index at: http://www.eff.org/IP/Video/MPAA_DVD_cases/) Martin Garbus affidavit supporting the motion for recusal/disqualification: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_def_ny_recus_aff.html Memorandum of Law supporting the motion for recusal/disqualification: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_def_ny_recus_memo.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 14:13:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA22624 for dvd-discuss-outgoing; Mon, 17 Jul 2000 14:13:27 -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 OAA22621 for ; Mon, 17 Jul 2000 14:13:26 -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:2.21) with ESMTP id OAA12346 for ; Mon, 17 Jul 2000 14:12:28 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA19295; Mon, 17 Jul 2000 14:12:27 -0400 (EDT) Date: Mon, 17 Jul 2000 14:12:27 -0400 (EDT) Message-Id: <200007171812.OAA19295@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <000101bff011$4045f4e0$87ce0593@ia.nsc.com> References: <000101bff011$4045f4e0$87ce0593@ia.nsc.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf writes: > From: "Jim Taylor" > > > From an aesthetics point of view, there should be no difference to the > > user. > > You're right about aesthetics. I'm sure the aesthetics of the > user-experience had a good deal to do with the decision to build an > automated system. The problem is, in their drive to have aesthetic > authentication, the left out the authentication part. And you can have a genuine TPM which is (almost) transparent to the user, give or take a one-time setup. Take the MIT student records system --- this provides a set of web pages that students can go to in order to view their own records. The way it works is that MIT issues a personal SSL certificate to each student, which is cached by the browser. All this mechanism requires of the student is a one-time setup, to get the personal certificate loaded into the browser; after that, it's completely transparent. Yet this is a true TPM --- each student gets to see only their own records, based on the certificate presented by their browser; records are released only to particular individuals authorized for that record, and attempts by a student to retrieve another student's records do get bounced. (This is MIT we're talking about, so if there was an easy way to subvert these access checks, they'd find out in a hurry, believe me). rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 14:22:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23110 for dvd-discuss-outgoing; Mon, 17 Jul 2000 14:22:50 -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 OAA23102 for ; Mon, 17 Jul 2000 14:22:49 -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:2.21) with ESMTP id OAA14041 for ; Mon, 17 Jul 2000 14:21:52 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA22847; Mon, 17 Jul 2000 14:21:51 -0400 (EDT) Date: Mon, 17 Jul 2000 14:21:51 -0400 (EDT) Message-Id: <200007171821.OAA22847@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: [dvd-discuss] Another approach to semantics In-Reply-To: <200007171739.e6HHdUN12397@tbird.iworld.com> References: <200007171739.e6HHdUN12397@tbird.iworld.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian writes: > Setup a review board that authorizes devices by their function. > This is pure market control. Control the devices to control > content. We have many Industry Standard oganizations. Let's > assume there's room for the DVDCCA.... > > License both software and hardware in such a way that they don't > allow copying. And that's it.... > > Your WfP could have responded: the user does not need to be > authorized. The user can do whatever he/she wants. However > unlicensed products will not be supported nor endorsed. > > They blew it. Now it's feeding time. Huh? The MPAA is trying to set things up so that a player which they haven't blessed isn't just *unsupported*, but *illegal*. I don't see what in your proposed arrangement achieves that result. I can't speak for the LiViD group, but I doubt that they would even asked for the MPAA's support or endorsement --- I think they'd be happy just to be able to build their own, unofficial, unendorsed player in peace. BTW, Rares, in your email, each paragraph always has one very long, unbroken line. This is very annoying, not least because it makes your messages nearly unreadable in the archive. Please fix... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 14:27:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA23767 for dvd-discuss-outgoing; Mon, 17 Jul 2000 14:27:27 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA23763 for ; Mon, 17 Jul 2000 14:27:23 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PT9Q>; Mon, 17 Jul 2000 14:31:05 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E50@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] EFF Moves to Disqualify Kaplan Date: Mon, 17 Jul 2000 14:31:04 -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 the text of the motion available? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 15:21:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24757 for dvd-discuss-outgoing; Mon, 17 Jul 2000 15:21:22 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24754 for ; Mon, 17 Jul 2000 15:21:19 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6HJLGN20182; Mon, 17 Jul 2000 15:21:16 -0400 Date: Mon, 17 Jul 2000 15:21:16 -0400 Message-Id: <200007171921.e6HJLGN20182@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: DVD-discuss Subject: Re: RE: [dvd-discuss] Another approach to semantics Content-Type: multipart/mixed; boundary="----------=_963861676-20181-0" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is a multi-part message in MIME format... ------------=_963861676-20181-0 Content-Type: text/plain Content-Disposition: inline Robert S. Thau wrote: >Rares Marian writes: > > Setup a review board that authorizes devices by their function. > > This is pure market control. Control the devices to control > > content. We have many Industry Standard oganizations. Let's > > assume there's room for the DVDCCA.... > > > > License both software and hardware in such a way that they don't > > allow copying. And that's it.... > > > > Your WfP could have responded: the user does not need to be > > authorized. The user can do whatever he/she wants. However > > unlicensed products will not be supported nor endorsed. > > > > They blew it. Now it's feeding time. > >Huh? The MPAA is trying to set things up so that a player which they >haven't blessed isn't just *unsupported*, but *illegal*. I don't see >what in your proposed arrangement achieves that result. That's just it. In my proposed arrangement any player with a license key assigned to it is licensed if it conforms to the design that the manufacturer agreed to by signing the contract. They should have stopped there. Then they could have prepared other tools for DVD authors so they could guarantee that their stuff would only play in licensed players. Antitrust aside they didn't do that. They just went ahead and branded any paratechnology as illegal. The idea is that at least licensed players could be designed to stop copying. But they didn't even get close to that. That's all I meant. >I can't speak for the LiViD group, but I doubt that they would even >asked for the MPAA's support or endorsement --- I think they'd be >happy just to be able to build their own, unofficial, unendorsed >player in peace. I agree totally. The question is how is this different than illegal cable access? With cable access you pay for channels then the cable company is required to program those channels into your cable box. Not the other way around. It's not illegal to build a cable descrambler. It's not even illegal in some place to sell them. It's simply illegal to steal cable w/ it. With DVDs it's illegal to copy them except for space shifting purposes. They tried to avoid involving users in the process while claiming that users are in fact involved. >BTW, Rares, in your email, each paragraph always has one very long, >unbroken line. This is very annoying, not least because it makes your >messages nearly unreadable in the archive. Please fix... Fixed. :) >rst > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com ------------=_963861676-20181-0 Content-Type: text/plain ; name="resume2.txt" Content-Disposition: inline; filename="resume2.txt" Content-Transfer-Encoding: base64 UnVzc2VsIFNjaHVsdHoNCjExNzA2IEJpcmNoYmFyayBUcmFpbCB+IEF1c3Rp biwgVFggIDc4NzUwDQpIb21lIFBob25lIDUxMi4yNDkuMjQzMw0KRW1haWw6 IGlydXNzZWxAbGludXhzdGFydC5jb20NCg0KT0JKRUNUSVZFDQpTZWVraW5n IGEgZnVsbCB0aW1lIHBvc2l0aW9uIHN1cHBvcnRpbmcgb3IgYWRtaW5pc3Ry YXRpbmcgVU5JWCBzeXN0ZW1zLg0KDQpRVUFMSUZJQ0FUSU9OUw0KKiBTdHJv bmcgY29tbXVuaWNhdGlvbiBza2lsbHMuDQoqIFZlcnkgdGVjaG5pY2FsIG1p bmRlZCwgd2l0aCBhIHN0cm9uZyBhdHRlbnRpb24gdG8gZGV0YWlsLg0KKiBB YmlsaXR5IHRvIHdvcmsgd2VsbCBib3RoIGluZGVwZW5kZW50bHkgYW5kIGlu IGEgdGVhbSBlbnZpcm9ubWVudC4NCiogVGFrZXMgcHJpZGUgaW4gYmVpbmcg YSBkZXBlbmRhYmxlIGFuZCBlZmZpY2llbnQgd29ya2VyLg0KKiBBYmlsaXR5 IHRvIHdvcmsgZmxleGlibGUgaG91cnMuDQoNCkNPTVBVVEVSIFNLSUxMUw0K KiBFeHBlcmllbmNlIHdpdGggV2luZG93cyA5NS85OC9OVC8yMDAwLCBNYWNP UywgQmVPUywgTGludXgsIEZyZWVCU0QsIGFuZCBTdW4gU29sYXJpcyBvcGVy YXRpbmcgc3lzdGVtcy4NCiogQ29tcGxldGVkIE1pY3Jvc29mdCB0cmFpbmlu ZyBjbGFzc2VzIGZvciAiSW1wbGVtZW50aW5nIFdpbmRvd3MgMjAwMCBQcm9m ZXNzaW9uYWwgYW5kIFNlcnZlciIgYW5kICJXaW5kb3dzIDIwMDAgTmV0d29y ayBhbmQgT3BlcmF0aW5nIFN5c3RlbSBFc3NlbnRpYWxzLiINCiogRXhwZXJ0 aXNlIGZyb20gd29yayBleHBlcmllbmNlIHRyb3VibGVzaG9vdGluZyBkaWFs dXAgY29ubmVjdGlvbiBpc3N1ZXMgZm9yIHRoZSBmdWxsIHJhbmdlIG9mIFdp bmRvd3Mgb3BlcmF0aW5nIHN5c3RlbXMgYW5kIE1hY2ludG9zaCBjb21wdXRl cnMuDQoqIEZhbWlsaWFyaXR5IHdpdGggTWljcm9zb2Z0IE9mZmljZSwgV29y ZFBlcmZlY3QsIEFkb2JlIFBob3Rvc2hvcCwgUGl2b3RhbCBSZWxhdGlvbnNo aXAsIEludGVybmV0IEV4cGxvcmVyLCBOZXRzY2FwZSwgYW5kIHZhcmlvdXMg VU5JWCBwcm9ncmFtcy4NCiogS25vd2xlZGdlIG9mIEMgcHJvZ3JhbW1pbmcg bGFuZ3VhZ2UgYW5kIEhUTUwgZWRpdGluZy4NCiogRXhwZXJpZW5jZSB3aXRo IGluc3RhbGxpbmcvbWFpbnRhaW5pbmcgUEMgaGFyZHdhcmUgYW5kIHNvZnR3 YXJlLg0KDQpXT1JLIEhJU1RPUlkNCkphbi4gMywgMjAwMC1QcmVzZW50LCBU ZWNoIFN1cHBvcnQgQXNzb2NpYXRlLCBHVEUNCiogUHJvdmlkZWQgcGhvbmUg YW5kIGVtYWlsLWJhc2VkIHRlY2huaWNhbCBzdXBwb3J0IGZvciBjdXN0b21l cnMgb2Ygc2V2ZXJhbCBuYXRpb253aWRlIElTUCdzLCBpbmNsdWRpbmcgRXhj ZWwgT25saW5lLCBCV1cgT25saW5lLCBJbnRlcm5ldCA0IEZhbWlsaWVzLCBh bmQgRXBvY2ggRGlyZWN0Lg0KKiBUcm91Ymxlc2hvdCBwcm9ibGVtcyByZWdh cmRpbmcgaW50ZXJuZXQgZGlhbHVwIGFjY2VzcywgY29uZmlndXJhdGlvbiBv ZiBpbnRlcm5ldCBicm93c2VycyBhbmQgbWFpbCBjbGllbnRzLCBhbmQgbW9k ZW0gY29ubmVjdGlvbiBpc3N1ZXMuDQoqIEFzIGEgc2VuaW9yIHRlY2gsIHdh cyByZXNwb25zaWJsZSBmb3IgaGFuZGxpbmcgY2FsbGJhY2tzIGZvciBlc2Nh bGF0ZWQgdGlja2V0cyBmcm9tIG90aGVyIGFnZW50cy4NCiogUmVzcG9uc2li bGUgZm9yIHJlcG9ydGluZyBzZXJ2ZXIgb3V0YWdlcyB0byBuZXR3b3JrIGVu Z2luZWVycy4NCg0KTWF5IDMsIDE5OTktRGVjIDMxLCAxOTk5LCBUZWNoIFN1 cHBvcnQgQXNzb2NpYXRlLCBQRFMgVGVjaG5pY2FsIFNlcnZpY2VzDQoqIFdv cmtlZCBhdCBHVEUgdmlhIGEgc3RhZmZpbmcgYWdlbmN5IHBlcmZvcm1pbmcg c2FtZSBkdXRpZXMgYXMgYWJvdmUuDQoNCk1heSAxOTk3LUZlYi4xOTk5LCBT YWxlcyBBc3Npc3RhbnQsIEFjdWl0eSBDb3JwLg0KKiBBc3Npc3RlZCBjb3Jw b3JhdGUgc2FsZXMgdGVhbSBpbiBnZW5lcmF0aW5nIHBvdGVudGlhbCBsZWFk cyBmcm9tIHNvdXJjZXMgc3VjaCBhcyBvbmxpbmUgd2ViIHNpdGVzIGFuZCBJ bnRlcm5pYyBXaG9pcyBkYXRhYmFzZSBpbmZvcm1hdGlvbi4NCiogTW9uaXRv cmVkIHRoZSBjb21wYW55J3Mgb25saW5lIHdlYi1iYXNlZCBjaGF0IHJvb20g dG8gcHJvdmlkZSBpbmZvcm1hdGlvbiBhYm91dCBwcm9kdWN0cywgcmVjb3Jk IGxlYWQgY29udGFjdCBpbmZvcm1hdGlvbiwgYW5kIHByb3ZpZGUgaW5mb3Jt YXRpb24gYW5kIHN1cHBvcnQgZm9yIGNsaWVudCB1c2Vycy4NCiogUGVyZm9y bWVkIGRhdGFiYXNlIG1haW50ZW5hbmNlIGZvciB0aGUgcHVycG9zZSBvZiBv cmdhbml6aW5nIHNhbGVzIHRlcnJpdG9yeSBpbmZvcm1hdGlvbi4NCiogUGVy Zm9ybWVkIHZhcmlvdXMgYWRtaW5pc3RyYXRpb24gZHV0aWVzIGluY2x1ZGlu ZyBmcm9udCBkZXNrIGhlbHAgYW5kIGZpbGluZy4NCg0KMTk5MS0xOTk0LCBT YWxlcyBDbGVyaywgQnJvb2tzaGlyZSBQaGFybWFjeQ0KKiBIYW5kbGVkIGNh c2ggc2FsZXMuDQoqIEJhbGFuY2VkIHJlZ2lzdGVyIGFuZCBwcmVwYXJlZCBk YWlseSBzYWxlcyBzdW1tZXJ5IGFuZCBkZXBvc2l0cy4NCiogQXNzaXN0ZWQg d2l0aCBpbnZlbnRvcnkgb3JkZXJpbmcvc3RvY2tpbmcuDQoNCkVEVUNBVElP Tg0KKiBBdHRlbmRlZCBVbml2ZXJzaXR5IG9mIFRleGFzIGF0IEF1c3Rpbiwg bWFqb3IgaW4gY2hlbWlzdHJ5Lg0KKiBSb3lhbCBIaWdoIFNjaG9vbCwgQnJv b2tzaGlyZSwgVGV4YXMsIENsYXNzIG9mICc5My4NCg0K ------------=_963861676-20181-0-- From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 16:00:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25380 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:00:28 -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 QAA25377 for ; Mon, 17 Jul 2000 16:00:22 -0400 Message-ID: <20000717195855.7644.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Mon, 17 Jul 2000 12:58:55 PDT Date: Mon, 17 Jul 2000 12:58:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Recusal Motion documents 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 continue to be amazed by this issue. Several things occur to me: 1. Time Warner and the MPAA surely knew that they hired Kaplan's former firm. I doubt it's a coincidence that Kaplan ended up in this case. 2. The origin of the obvious bias that we've all commented has now revealed itself. 3. Kaplan's offense is much worse than the one that the MPAA tried to remove Garbus on, since Kaplan's firm dealt directly with DVD antitrust issues and Kaplan would damage his firm's reputation by ruling the other way. 4. Kaplan recommended disciplinary action against Garbus: I wonder if he'll do the same against himself. 5. I've always thought that the MPAA had tremendous advantage in this case because they got to select the defendants and timing - I cannot espace speculating that they may have attempted to select the judge as well. Is there any way they could have "predicted" that Kaplan would have been appointed? How are district judges assigned to cases? 6. Procedural bias appeared on day 1 of this case when Kaplan refused to delay the temporary injunction hearing. He was substantively biased immediately as well by cutting off the defense and refusing to hear their expert witness. Doesn't it seem like Kaplan approached this case with an agenda from the start? Wouldn't you expect the MPAA to hand pick such a judge if they could? --- Eddan Katz wrote: > The following documents are now available in the EFF MPAA archives: > (Index at: http://www.eff.org/IP/Video/MPAA_DVD_cases/) > > Martin Garbus affidavit supporting the motion for > recusal/disqualification: > http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_def_ny_recus_aff.html > > Memorandum of Law supporting the motion for recusal/disqualification: > http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_def_ny_recus_memo.html > > -Eddan Katz > EFF Intern > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 16:14:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25563 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:14:27 -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 QAA25560 for ; Mon, 17 Jul 2000 16:14:25 -0400 Message-ID: <20000717201257.9748.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Mon, 17 Jul 2000 13:12:57 PDT Date: Mon, 17 Jul 2000 13:12:57 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] First day summary - Kaplan rejects his own bias To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan's Wired article: http://www.wired.com/news/politics/0,1283,37615,00.html "A testy Kaplan, during a hearing that began at 9 a.m., rejected attorney Martin Garbus' request for recusal and started the trial as scheduled" __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 16:27:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25689 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:27:30 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25685 for ; Mon, 17 Jul 2000 16:27:29 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6HKQVm14856 for ; Mon, 17 Jul 2000 15:26:31 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id PAA11517 for ; Mon, 17 Jul 2000 15:26:30 -0500 (CDT) Date: Mon, 17 Jul 2000 15:26:30 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First day summary - Kaplan rejects his own bias In-Reply-To: <20000717201257.9748.qmail@web514.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 Mon, 17 Jul 2000, Bryan Taylor wrote: > "A testy Kaplan, during a hearing that began at 9 a.m., rejected > attorney Martin Garbus' request for recusal and started the trial as > scheduled" Does it just end with that? Surely there must be other avenues that the defense can try, it wouldn't make sense to have the judge be the final arbiter of his own fairness. At least, I hope not. sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 16:52:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26206 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:52:49 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA26203 for ; Mon, 17 Jul 2000 16:52:47 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id PAA03378 for ; Mon, 17 Jul 2000 15:55:05 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id <3P3KYK15>; Mon, 17 Jul 2000 16:51:49 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616BC5@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] First day summary - Kaplan rejects his own bias Date: Mon, 17 Jul 2000 16:51:48 -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 This thing freaks me out completely... Is this a judicial system!? -----Original Message----- From: sam th [mailto:sam@uchicago.edu] Sent: Monday, July 17, 2000 3:27 PM On Mon, 17 Jul 2000, Bryan Taylor wrote: > "A testy Kaplan, during a hearing that began at 9 a.m., rejected > attorney Martin Garbus' request for recusal and started the trial as > scheduled" Does it just end with that? Surely there must be other avenues that the defense can try, it wouldn't make sense to have the judge be the final arbiter of his own fairness. At least, I hope not. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 16:57:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26369 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:57:08 -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 QAA26366 for ; Mon, 17 Jul 2000 16:57:05 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CPDM>; Mon, 17 Jul 2000 13:56:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D03@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 17 Jul 2000 13:56:08 -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: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Friday, July 14, 2000 9:22 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > Jim Taylor wrote: > > -- second how can a TPM with a fixed > > >set of keys be considered effective in a 1201 sense. > > > > What is the measure of "effectiveness"? Why does it matter? > The DMCA does > > not specify a particular level that a TPM must meet. > > I believe that Jim Taylor is absolutely right. The definition of > "effective" in the DMCA is pretty close to a no-op, as far as I can > tell; if I understand the language of the law correctly, the > DMCA seems > to be using the meaning "has the effect of", or something like that, > which specifies very little requirement on the robustness of > the device. > > Though I too initially found it surprising that anyone could consider > CSS an effective protection mechanism, I couldn't find any language in > the DMCA suggesting that "effective" imposes any substantive > requirement > on the technical security level of the TPM. However, there are certain -capabilities- that must be present in order to be a TPM ... well, a particular -type- of TPM at least. They are claiming that CSS is a particular -type- of TPM, for the purposes of "access control". Since it can be shown, not that CSS is ineffective, but that it does not meet the design requirements for "access control" then we can show that it is not effective as an access control TPM in the 1201 sense of the word. > > Many people on this mailing list have suggested that one should look > to the authority model, not the "effective" word, if one wants to find > lower limits on what can qualify as a DMCA-protected TPM. > > This is all very confusing to me, of course, so I could have > it all wrong. > -- -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 Jul 17 16:57:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA26385 for dvd-discuss-outgoing; Mon, 17 Jul 2000 16:57:48 -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 QAA26375 for ; Mon, 17 Jul 2000 16:57:45 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CPDP>; Mon, 17 Jul 2000 13:56:54 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D04@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 17 Jul 2000 13:56:50 -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 Well, if they aren't copyrighted, then we don't even need to invoke fair use then, do we? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Friday, July 14, 2000 9:26 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > I can't yet see how the space-shifting doctrine might apply. > > Tell me where I go wrong: The space-shifting doctrine allows certain > forms of use of a copyrighted work; but the CSS keys aren't > copyrighted. > Did I miss something? > From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 17:09:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26592 for dvd-discuss-outgoing; Mon, 17 Jul 2000 17:09:14 -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 RAA26589 for ; Mon, 17 Jul 2000 17:09:12 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CP1H>; Mon, 17 Jul 2000 14:08:24 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D05@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Mon, 17 Jul 2000 14:08:16 -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: John Zulauf [mailto:john.zulauf@ia.nsc.com] ... > This doesn't > pass the giggle test. (the giggle-at-the-dongle test? hmmmm) Snarf! Good thing I wasn't drinking anything just then... -- -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 Jul 17 17:11:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26771 for dvd-discuss-outgoing; Mon, 17 Jul 2000 17:11:54 -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 RAA26768 for ; Mon, 17 Jul 2000 17:11:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CP1Q>; Mon, 17 Jul 2000 14:11:04 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D06@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: RE: [dvd-discuss] Another approach to semantics Date: Mon, 17 Jul 2000 14:11:02 -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: Rares Marian [mailto:rmarian@linuxstart.com] > Sent: Friday, July 14, 2000 10:14 PM > To: DVD-discuss > Subject: Re: RE: [dvd-discuss] Another approach to semantics > > > David A. Wagner wrote: > > >In article <200007150414.e6F4ED823929@tbird.iworld.com> you write: > >> I'm also working from what the word key means usually. > > > >That's a funny sentence, because "key" usually implies some > sort of secret. > >By that usage, DVD security doesn't use any keys. They're > all public. > > > >Sorry. I know language games probably aren't going to be > very fruitful. > >But the post you are responding to made a good point, which > I think you > >overlooked somehow. MSIE JavaScript foo is not secret. CSS > "keys" are > >not secret, either. What's the difference? > > Last I checked, title keys are secret. I may have missed > something here. > They are distributed on the same media as the thing which they are purported to protect. It's as if I welded keys into my car door and ignition. Yes, there is a key ... but does it provide any protection? Not when it is inseparable from the target. -- -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 Jul 17 17:26:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA27367 for dvd-discuss-outgoing; Mon, 17 Jul 2000 17:26:50 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA27364 for ; Mon, 17 Jul 2000 17:26:48 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P43D>; Mon, 17 Jul 2000 17:30:31 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E54@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] First day summary - Kaplan rejects his own bias Date: Mon, 17 Jul 2000 17:30:26 -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 Just to state, IANAL. It is procedure to always argue all motions before the trial judge[1]. On an appeal, there will be an argument that Kaplan should have recused himself, and the evidence to support the motion will be part of the record for appeal. [1] I assume that there are rare exceptions. There are all kinds of procedural rules to this stuff, it is complicated. -----Original Message----- From: Anjul Srivastava [mailto:anjul.srivastava@sanchez.com] Sent: Monday, July 17, 2000 4:52 PM To: 'dvd-discuss@eon.law.harvard.edu' Subject: RE: [dvd-discuss] First day summary - Kaplan rejects his own bias This thing freaks me out completely... Is this a judicial system!? -----Original Message----- From: sam th [mailto:sam@uchicago.edu] Sent: Monday, July 17, 2000 3:27 PM On Mon, 17 Jul 2000, Bryan Taylor wrote: > "A testy Kaplan, during a hearing that began at 9 a.m., rejected > attorney Martin Garbus' request for recusal and started the trial as > scheduled" Does it just end with that? Surely there must be other avenues that the defense can try, it wouldn't make sense to have the judge be the final arbiter of his own fairness. At least, I hope not. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 18:19:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28406 for dvd-discuss-outgoing; Mon, 17 Jul 2000 18:19:02 -0400 Received: from thoughtpolice.bigbrother.net (patchi.organic.com [208.241.222.3] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28403 for ; Mon, 17 Jul 2000 18:19:00 -0400 Received: from bigbrother.net (IDENT:sterno@localhost [127.0.0.1]) by thoughtpolice.bigbrother.net (8.9.3/8.9.3) with ESMTP id PAA06335; Mon, 17 Jul 2000 15:36:35 -0500 Message-ID: <39736E50.4AD83231@bigbrother.net> Date: Mon, 17 Jul 2000 15:36:32 -0500 From: Steve Stearns X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] First day summary - Kaplan rejects his own bias 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 sam th wrote: > Does it just end with that? Surely there must be other avenues that the > defense can try, it wouldn't make sense to have the judge be the final > arbiter of his own fairness. At least, I hope not. Well, if nothing else, this certainly lays great ground work for an appeal. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 21:11:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA31495 for dvd-discuss-outgoing; Mon, 17 Jul 2000 21:11:41 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA31492 for ; Mon, 17 Jul 2000 21:11:40 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6I1Bcd05312; Mon, 17 Jul 2000 21:11:38 -0400 Date: Mon, 17 Jul 2000 21:11:38 -0400 Message-Id: <200007180111.e6I1Bcd05312@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: [dvd-discuss] Re: [f-cpu] C++ F-CPU Simulator (was: Re: SMT and bandwidth) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kai Wetzel wrote: >Yann Guidon wrote: >> >> hi Jeff ! welcome back :-)))) >> >> Jeff Davies wrote: >> > Albert Abramson wrote: >> > > Rares Marian wrote: >> > > > Albert Abramson wrote: >> > > > >Aaargh! Use your imagination, Whygee! >> sorry, i'm tired... >> >> anyway, i think that it was a good idea to ask about the >> SMT/bandwidth problem. it helped wake the list up. >> but i wonder if we are "going the good way". It seems that >> Albert's discussions, relayed by Rares, burry the work >> that the list has done for one year on the FC0. > >Good point. I don't see this happening, though. >The new stuff is just beeing discussed more actively because >it's in a less mature state. And if we want FC1 to be sucessful >work should better start sooner then later. > >I'd like to give it a try and design an int adder following >the rules put down in the FC0 manual. This would then be given >to the group to take a look and lough at it (peer review). >But you said you had actually started one already ? Just make each unit an elf library. >> OK i know, it must be fun to design a CPU but it is no fun at all >> to see that all our previous work is burried by a newcomer. >> If we want to see our chip made, we'll have to stop babbling >> all the time and MAKE things. we've completed one part of the work >> for the FC0, and now we're thinking everything again for a new >> stuff. i don't call this constructive. > >Hmm, babbling about new stuff and completing FC0 is orthogonal to >me. And as a side effect we get new ideas for FC0, e.g. "stalled threads"- >multi-threading is a thing which could show useful for a classic RISC >(FC0) road as well - as could concurrent multi-threading/pipelined FUs, >but it seems not to be worth it to mention it every day again :°| > >> > Perhaps it is time to start putting together some C++ ,models of the processor. >> we've started to do this for the FC0 for a long time. There's even a GCC port >> going on (see sourceforge). >> >> > I think we should start with some primitives of the type OR/AND/NOT and a LATCH >> > perhaps also a TRISTATE buffer. Therefore each electrical node should have 3 states (can be >> > char or an enumerated type, of 1,0 and X for tristate). >> >> > Comments please..?? >> >> 1) did you think about the synchronicity problems ? >> will you simulate at the clock cycle level, or at the picosecond (thus having to >> simulate the propagation delays etc...) ? > >The latter is the way to go IMHO. do clock cycle first to see it run do the delay simulation afterwards >> > Jeff Davies >> WHYGEE >[...] > >kai > > Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 21:34:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA31776 for dvd-discuss-outgoing; Mon, 17 Jul 2000 21:34:09 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA31773 for ; Mon, 17 Jul 2000 21:34:08 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6I1Y6J06323; Mon, 17 Jul 2000 21:34:06 -0400 Date: Mon, 17 Jul 2000 21:34:06 -0400 Message-Id: <200007180134.e6I1Y6J06323@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: ignore previous Re: [dvd-discuss] Re: [f-cpu] C++ F-CPU Simulator (was: Re: SMT and bandwidth) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian wrote: >Kai Wetzel wrote: > >>Yann Guidon wrote: >>> >>> hi Jeff ! welcome back :-)))) >>> >>> Jeff Davies wrote: >>> > Albert Abramson wrote: >>> > > Rares Marian wrote: >>> > > > Albert Abramson wrote: >>> > > > >Aaargh! Use your imagination, Whygee! >>> sorry, i'm tired... >>> >>> anyway, i think that it was a good idea to ask about the >>> SMT/bandwidth problem. it helped wake the list up. >>> but i wonder if we are "going the good way". It seems that >>> Albert's discussions, relayed by Rares, burry the work >>> that the list has done for one year on the FC0. >> >>Good point. I don't see this happening, though. >>The new stuff is just beeing discussed more actively because >>it's in a less mature state. And if we want FC1 to be sucessful >>work should better start sooner then later. >> >>I'd like to give it a try and design an int adder following >>the rules put down in the FC0 manual. This would then be given >>to the group to take a look and lough at it (peer review). >>But you said you had actually started one already ? > >Just make each unit an elf library. > >>> OK i know, it must be fun to design a CPU but it is no fun at all >>> to see that all our previous work is burried by a newcomer. >>> If we want to see our chip made, we'll have to stop babbling >>> all the time and MAKE things. we've completed one part of the work >>> for the FC0, and now we're thinking everything again for a new >>> stuff. i don't call this constructive. >> >>Hmm, babbling about new stuff and completing FC0 is orthogonal to >>me. And as a side effect we get new ideas for FC0, e.g. "stalled threads"- >>multi-threading is a thing which could show useful for a classic RISC >>(FC0) road as well - as could concurrent multi-threading/pipelined FUs, >>but it seems not to be worth it to mention it every day again :°| >> >>> > Perhaps it is time to start putting together some C++ ,models of the processor. >>> we've started to do this for the FC0 for a long time. There's even a GCC port >>> going on (see sourceforge). >>> >>> > I think we should start with some primitives of the type OR/AND/NOT and a LATCH >>> > perhaps also a TRISTATE buffer. Therefore each electrical node should have 3 states (can be >>> > char or an enumerated type, of 1,0 and X for tristate). >>> >>> > Comments please..?? >>> >>> 1) did you think about the synchronicity problems ? >>> will you simulate at the clock cycle level, or at the picosecond (thus having to >>> simulate the propagation delays etc...) ? >> >>The latter is the way to go IMHO. > >do clock cycle first to see it run >do the delay simulation afterwards > >>> > Jeff Davies >>> WHYGEE >>[...] >> >>kai >> >> >Rares > >Windows the other 70's technology. >---------------------- >Do you do Linux? :) >Get your FREE @linuxstart.com email address at: http://www.linuxstart.com Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 21:47:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA31916 for dvd-discuss-outgoing; Mon, 17 Jul 2000 21:47:36 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA31913 for ; Mon, 17 Jul 2000 21:47:35 -0400 Received: from jy01 (user-2inigab.dialup.mindspring.com [165.121.65.75]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id VAA03613 for ; Mon, 17 Jul 2000 21:46:36 -0400 (EDT) Message-Id: <200007180146.VAA03613@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Mon, 17 Jul 2000 21:42:43 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There should be a batch of news reports out or coming tomorrow -- there were about 16 reporters and 3 sketch artists in court. The room was filled, 50 or so, half dozen lawyers for each side, clerks, court reporters, His Honor, a young girl near him. A young girl? who knows who or why. A crowd of DeCSS-shirted demonstrators remained all day at the courthouse plaza, singing, chanting, guitar thrumming, lofting signs of free speech and giant portraits of Jon Johansen -- who was there with his father. After the judge's refusal to recuse, the day was taken with examination of Michael Shamos by Charles Sims of Proskauer and cross-examination by Marty Garbus. Examination covered the stuff of his deposition, with demo of movies for comparison of DVD with the DivX Shamos got from the Net. Or so he claimed to have gotten, while it was actually obtained by his assistant, Eric Burns, a student at CMU, who was present and ran the Sony VAIO demo. Under cross-examination by Marty Garbus, Shamos the phony expert, admitted he could not have conducted his test for MPAA without the skill and help of real expert, ERic Burns. As a result Burns is now to become a witness to tell what he actually did to get the DivX, get it decoded synchronized and playable. Shamos looked swell while being examined by Proskauer and got blown away by Garbus. Even the judge took a few whacks, and approved Frank Stevenson and Eric Burns as witnesses over Proskauer's objections. Shamos makes up to $700,000 a year testifying as an expert witness at an hourly rate, $400; and says he pays Burns $100 per hour. During a break attempts were made to get Burns to discuss his work for Shamos; he said he'd be fired if he did. He said he expected to be vilified back at CMU when his role is publicized. An attempt is to be made to bring him over to the angel side. There was a good bit of humor and joking during the session, by the judge and the opponents. Nobody joked about the judge's refusal to get his prejudiced ass off the case. John Gilmore never smiled. If you don't know who John Gilmore is, you don't know the roots of the case, and why he will never joke about it until its won. And let me tell you this, if you want to be on national TV, attend the trial: CNN tonight showed even me for 1 second, after Jon, before Emmanuel -- they made eloquent statements, I was scratching hives. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 22:13:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32130 for dvd-discuss-outgoing; Mon, 17 Jul 2000 22:13:05 -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 WAA32127 for ; Mon, 17 Jul 2000 22:13:03 -0400 Message-ID: <20000718021136.20004.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Mon, 17 Jul 2000 19:11:36 PDT Date: Mon, 17 Jul 2000 19:11:36 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 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 Ah John, I've been waiting all day to hear from you. Somehow I knew you'd be the first one who was at the trial to post here. Thanks... Can you say anything more about Kaplan's reasoning for not recusing himself? Did he contest the facts? Did he give any reasoning behind his decision not to walk away? Also, were there any opening statements? I'm really eager to know what Garbus presented as his theory of the case. Any idea if/when transcripts of the precedings will be available? --- John Young wrote: > John Gilmore never smiled. If you don't know who > John Gilmore is, you don't know the roots of the case, > and why he will never joke about it until its won. OK, I 'fess -- who is John Gilmore? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 22:39:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32657 for dvd-discuss-outgoing; Mon, 17 Jul 2000 22:39:04 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA32654 for ; Mon, 17 Jul 2000 22:39:03 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id WAA16575; Mon, 17 Jul 2000 22:39:00 -0400 Message-ID: <3973C344.5C715F7A@mit.edu> Date: Mon, 17 Jul 2000 22:39:00 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Where do we go from here? Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am afraid that the plaintiffs have trapped us in a box. Looking back, it seems clear to me that moving to disqualify Garbus was strategic. They had no particular interest in succeeding in the motion. Instead, it gives them insurance in case Kaplan's conflict comes out. Now, we're going to get a show trial with Kaplan, which we will lose. When we make our appeal the first (and strongest) argument will be Kaplan's conflict, but they will argue that Garbus' and Kaplan's conflicts should be considered together leading to either: (1) Both conflicts are judged irrelevant. This means we'll be stuck with the record from the show trial on appeal, effectively guaranteeing we will lose for good. (2) The conflicts are judged relevant so both Kaplan and Garbus will be disqualified. We'll get another trial, but probably with a less effective defense team and DeCSS will linger in limbo the whole time. Is there anything I've missed (or am I just too depressed after seeing what looks a lot like an attempt to take a bought law to a bought court for a bought decision)? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 22:42:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA00327 for dvd-discuss-outgoing; Mon, 17 Jul 2000 22:42:59 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA00324 for ; Mon, 17 Jul 2000 22:42:59 -0400 Received: from 216-164-132-132.s386.tnt2.lnhva.md.dialup.rcn.com ([216.164.132.132]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13ENKc-0005pl-00 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Jul 2000 22:42:02 -0400 Date: Mon, 17 Jul 2000 22:41:57 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 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 On Mon, 17 Jul 2000, Bryan Taylor wrote: > OK, I 'fess -- who is John Gilmore? Briefly, one of the co-founders of EFF, and a strong advocate of cryptography as a means of preserving anonymity... see: http://www.eff.org/pub/Publications/John_Gilmore/ Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 22:51:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA00402 for dvd-discuss-outgoing; Mon, 17 Jul 2000 22:51:54 -0400 Received: from zork.zork.net ([207.20.40.42]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA00399 for ; Mon, 17 Jul 2000 22:51:53 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13ENTE-0002BJ-00; Mon, 17 Jul 2000 19:50:56 -0700 Date: Mon, 17 Jul 2000 19:50:56 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Message-ID: <20000717195056.N2183@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/1.0.1i In-Reply-To: ; from jerwin@osf1.gmu.edu on Mon, Jul 17, 2000 at 10:41:57PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeremy Erwin writes: > On Mon, 17 Jul 2000, Bryan Taylor wrote: > > > OK, I 'fess -- who is John Gilmore? > > Briefly, one of the co-founders of EFF, and a strong advocate of > cryptography as a means of preserving anonymity... > > see: > http://www.eff.org/pub/Publications/John_Gilmore/ Or, straight from the gnu's mouth, http://www.toad.com/gnu/ (seems down right now, but I bet it will be up soon). -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 23:14:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA01752 for dvd-discuss-outgoing; Mon, 17 Jul 2000 23:14:08 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA01748 for ; Mon, 17 Jul 2000 23:14:07 -0400 Received: from jy01 (user-2inigab.dialup.mindspring.com [165.121.65.75]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id XAA09009 for ; Mon, 17 Jul 2000 23:13:09 -0400 (EDT) Message-Id: <200007180313.XAA09009@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Mon, 17 Jul 2000 23:09:15 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <20000718021136.20004.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I missed the judge's recusal and the parties opening statements, due to an earlier start, at 9 AM, rather than the announced 10 AM. The earlier start was arranged to respond to 2600's motion for Kaplan to recuse, which was made late Friday. Those of us waiting in the lobby to get in during a break were told that Kaplan quickly denied the motion for his recusal without argument, then ordered the trial to proceed. Nobody said what the opening arguments covered, though Robin Gross or someone can fill us in on them (two of our brilliant colleagues who heard the arguments said "I don't remember"). However, during cross of Shamos, Garbus elicited again and again that there had been no evidence produced by MPAA that DeCSS had been used even once to violate a DVD. He asked Shamos if any such evidence had been given to him by the plaintiffs, and Shamos said no. Garbus ran down a series of other DVD ripping programs and for each asked Shamos if he had been requested to test those or knew how they compared to DeCSS/DivX for speed and effectiveness; Shamos said no. Garbus asked Shamos if he knew of a single instance when DeCSS had been obtained through 2600 and used to hack a DVD; Shamos said no. And so on, down the range of options for causing harm to the plaintiffs by means other than DeCSS, to all of which Shamos answered no, or I don't know. A great scissors-hands whittling job by Marty -- clearly well briefed by those techdroids and wizards wasting lives here. John Gilmore was at the defense table, ventriloquizing. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 23:17:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02562 for dvd-discuss-outgoing; Mon, 17 Jul 2000 23:17:08 -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 XAA02558 for ; Mon, 17 Jul 2000 23:17:07 -0400 Received: from travel-net.com (trj51.travel-net.com [207.176.160.51]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id WAA25257 for ; Mon, 17 Jul 2000 22:14:05 -0400 Message-ID: <3973CB94.742E7344@travel-net.com> Date: Mon, 17 Jul 2000 23:14:28 -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] MPAA v. 2600 - Day 1 References: <20000718021136.20004.qmail@web513.mail.yahoo.com> 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 XAA02559 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu for the uninitiated, John Gilmore is one of the founders and key driving force behind EFF. You can find cool bio and stuff about him on the EFF site Very cool guy, ran the project to link a few computers togehter to crack a few keys a few years ago just to show it could be done. You may have heard about it.... Bryan Taylor wrote: > > Ah John, I've been waiting all day to hear from you. Somehow I knew > you'd be the first one who was at the trial to post here. Thanks... > > Can you say anything more about Kaplan's reasoning for not recusing > himself? Did he contest the facts? Did he give any reasoning behind his > decision not to walk away? > > Also, were there any opening statements? I'm really eager to know what > Garbus presented as his theory of the case. > > Any idea if/when transcripts of the precedings will be available? > > --- John Young wrote: > > > John Gilmore never smiled. If you don't know who > > John Gilmore is, you don't know the roots of the case, > > and why he will never joke about it until its won. > > OK, I 'fess -- who is John Gilmore? > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.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 Mon Jul 17 23:25:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA05231 for dvd-discuss-outgoing; Mon, 17 Jul 2000 23:25:38 -0400 Received: from server1.cluebot.com (server1.cluebot.com [216.110.36.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA05228 for ; Mon, 17 Jul 2000 23:25:37 -0400 Received: (from declan@localhost) by server1.cluebot.com (8.9.3/8.9.3) id WAA31312 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Jul 2000 22:37:19 -0500 Date: Mon, 17 Jul 2000 22:37:19 -0500 From: Declan McCullagh To: dvd-discuss@eon.law.harvard.edu Subject: Re: RE: Page Not Found!Re: [dvd-discuss] New York trial to begin Mond ay, July 17 Message-ID: <20000717223719.D31158@server1.cluebot.com> References: <200007171413.e6HED5o20446@tbird.iworld.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.2i In-Reply-To: <200007171413.e6HED5o20446@tbird.iworld.com>; from rmarian@linuxstart.com on Mon, Jul 17, 2000 at 10:13:05AM -0400 X-News-Site: http://www.wired.com/ X-URL: http://www.mccullagh.org/ Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu BTW I am in NYC and have been writin gupdates for Wired.com. -Declan On Mon, Jul 17, 2000 at 10:13:05AM -0400, Rares Marian wrote: > http://www.newsday.com/coverage/current/news/sunday/nd1474.htm > > Browser fart. > > Anjul Srivastava wrote: > > >It's still there. Just checked it... > > > >-----Original Message----- > >From: Rares Marian [mailto:rmarian@linuxstart.com] > >Sent: Monday, July 17, 2000 9:03 AM > >To: DVD-discuss > >Subject: Page Not Found!Re: [dvd-discuss] New York trial to begin > >Monday, July 17 > > > > > >Ron Gustavson wrote: > > > >>>Good recent news articles with overviews of the issues from > >>>Newsday > >>>and the NY Times > >> > >>Rita has written a great explication of the case; one that's accessible to > >anyone. > >>Refer your friends--those whose eyes glaze over at the mention of > >DeCSS--here. > > > >It's gone. > > > >> __________no-∞-do__________ > > > > > >Windows the other 70's technology. > >---------------------- > >Do you do Linux? :) > >Get your FREE @linuxstart.com email address at: http://www.linuxstart.com > > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 23:49:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07050 for dvd-discuss-outgoing; Mon, 17 Jul 2000 23:49:12 -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 XAA07047 for ; Mon, 17 Jul 2000 23:49:12 -0400 Received: from vvr09.ai.mit.edu (vvr09 [128.52.38.239]) by life.ai.mit.edu (8.9.3/8.9.3/AI2.13/ai.master.life:2.21) with ESMTP id XAA02049 for ; Mon, 17 Jul 2000 23:48:11 -0400 (EDT) From: "Robert S. Thau" Received: (from rst@localhost) by vvr09.ai.mit.edu (8.9.1a/AI2.7/ai.client:2.1) id XAA20411 for dvd-discuss@eon.law.harvard.edu; Mon, 17 Jul 2000 23:48:11 -0400 Date: Mon, 17 Jul 2000 23:48:11 -0400 Message-Id: <200007180348.XAA20411@vvr09.ai.mit.edu> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > (1) Both conflicts are judged irrelevant. This means we'll > be stuck with the record from the show trial on appeal, > effectively guaranteeing we will lose for good. You're assuming that the "show trial record" just won't have the facts needed to sustain an appeal ("access control" that never denies access to a work, the market-control features of CSS such as player-key revocation, lack of a contract with the viewer which could transfer "authority", etc.). Personally, I don't know --- at any rate, I think a useful trial record is still achievable and worth working towards. But it looks like an uphill fight. Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 17 23:51:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA07159 for dvd-discuss-outgoing; Mon, 17 Jul 2000 23:51:57 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA07156 for ; Mon, 17 Jul 2000 23:51:54 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P47R>; Mon, 17 Jul 2000 23:55:39 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E58@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] New Depositons Available Date: Mon, 17 Jul 2000 23:55:36 -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 Thanks a lot, these are great reading. >From what I have been able to read so far, it looks as though the main points of the plaintiff will be: 1. DeCSS circumvents the TPM CSS. To traffic in such a device in object code form is prohibited by 1201. Although the P's will initially claim that both source and object code cannot be distributed, they have a terrible time with source code. Although object code is a "ready to run" thing, might source code be just a description of the algorithm? Unhappily for our side, no witness has testified to the ease or non-ease of compiling DeCSS source. So in the depositions they try and get witnesses to say that you don't have to distribute source code to discuss a cryptographic system, and that experts can discuss such systems within their own closed community and keep secrets. (notice questions about sending encrypted email, further, notice the questions to Mr. Craig over if it would be possible for one member of LiViD to keep the CSS "secret"). 2. DeCSS only exists to circumvent CSS. Questions to the witnesses flesh out some of the things you would expect to see if DeCSS were really released for research purposes. The P's will want to show that it is standard practice to distribute additional materials such as papers and explanations along with source code, and that object code would not ever be distributed. They also will try and show that a responsible person who cracks a security system will notify the owner, the DVDCCA will claim that nobody told them anything, this insidious utility just appeared. 3. Piracy is rampant on the internet. Continuing questions about Napster, transfer times, ease of data transfer, show that the P's really want to show that they have an extraordinary interest in casual copying because systems such as napster and mesh turn causal copiers into full scale pirates. 4. Licensed players exist on Linux. There is no reason to suspect no license would ever be issued to a Linux player. It would not surprise me if a demo is done in court of one of the Linux players under development. 5. There is no reasonable "fair use" that includes copying the whole work. This is a line of questioning that has been done with nearly every witness -- "what is fair use", and predictably everyone has very different answers. The sad thing is that several defense witnesses seemed to make this point under questioning. I believe that the P's will argue that short excerpting is possible to videotape (or maybe feeding the signal back through a video capture or something), but that no full copies should be permitted to stand for fair use. ---------- We have spent a lot of time debating how DeCSS might not be circumvention. The source code issue we have not spent much time discussing, but the P's obviously consider that a very important attack to them. They clearly do not want a ruling that says "well, object code is prohibited, but source code is allowable for research and criticism." That would end up being in the same situation that margarine was in before you could legally sell it as yellow -- mix the color in. A point I have never seen made, not by any witness, is that in any open source process, not only is all the source code available, but frequently all the debate and design discussions are available as well. Unlike in a company, where everyone tries to -- in public at least -- maintain a degree of fidelity to company interests, open source developers work for their own reasons. It is likely that several feel "screw the MPAA, let's pirate" and trumpet that around. Such speech would not be suppressed like it would in a corporate atmosphere. DeCSS is clearly a utility with many different uses, but it is a mid-product. Linux survives in part because of the ease of data transfer. There is great interest in making every data format -- including CSSed DVDs as available as possible. "Fair use" and full copying -- I can think of a number of examples of fair use and full copies. If I media shift that would involve a full copy. If I load a file into my web site (login protected), travel across the country and then download it through that site, that is fair use -- I have made a copy for myself. Besides, a single .vob file cannot be a full length film anyway, and is the smallest atomic unit you could transform, so to excerpt a scene you would have to DeCSS -> pass through some program to excerpt. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 00:11:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07361 for dvd-discuss-outgoing; Tue, 18 Jul 2000 00:11:19 -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 AAA07358 for ; Tue, 18 Jul 2000 00:11:16 -0400 Message-ID: <20000718040949.8170.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Mon, 17 Jul 2000 21:09:49 PDT Date: Mon, 17 Jul 2000 21:09:49 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Re: Wired Coverage by Declan McCullagh To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Declan, you left of the link to your article: http://wired.com/news/politics/0,1283,37615,00.html How did he explain not recusing himself? How did he explain not stepping aside temporarily to let another judge hear the merits of the bias as required to by Fedaral law? Why didn't you cover this more? Kaplan clearly violated 28 USC 144: http://www4.law.cornell.edu/uscode/28/144.html "Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding." Also 144 28 USC 455(b)(2) and (a) appear to be relevant: http://www4.law.cornell.edu/uscode/28/455.html Why don't you cover this more!!? How about running a story "DeCSS Judge Violates Federal Law"? This case is a sham. The Judge's firm created the legal foundation for part of the defense while he was there. Then he ignores Federal Law and proceeds anyway when confonted with this. Kaplan should be disciplined - he's clearly abusing his position. Write about it!!! For God's sake, write about it!!! --- Declan McCullagh wrote: > BTW I am in NYC and have been writin gupdates for Wired.com. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 00:24:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07528 for dvd-discuss-outgoing; Tue, 18 Jul 2000 00:24:22 -0400 Received: from smtp-out1.bellatlantic.net (smtp-out1.bellatlantic.net [199.45.39.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07525 for ; Tue, 18 Jul 2000 00:24:21 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out1.bellatlantic.net (8.9.1/8.9.1) with SMTP id AAA05962 for ; Tue, 18 Jul 2000 00:23:15 -0400 (EDT) Message-Id: <4.1.20000717235754.01bfbe28@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Tue, 18 Jul 2000 00:23:47 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <200007180146.VAA03613@granger.mail.mindspring.net> References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for the update! As we've already seen, it sounds as though the plaintiffs are trying to paint the DMCA as their bulwark against theivery, with DeCSS as the chink they have to repair before it gets too large. The defense replies that DeCSS isn't what they need to stop, DMCA isn't the right wall to build, and there's no rain in the forecast, much less a flood. (Or I could just be spinning bad analogies, since I couldn't be there for a firsthand view.) If anyone sees additional stories, I'm trying to keep a list on : Wired News, Reuters, and ZDnet so far. --Wendy At 09:42 PM 07/17/2000 -0400, John Young wrote: >There should be a batch of news reports out or coming >tomorrow -- there were about 16 reporters and 3 sketch >artists in court. The room was filled, 50 or so, half dozen >lawyers for each side, clerks, court reporters, His Honor, >a young girl near him. A young girl? who knows who or why. > >A crowd of DeCSS-shirted demonstrators remained all day >at the courthouse plaza, singing, chanting, guitar thrumming, >lofting signs of free speech and giant portraits of Jon Johansen >-- who was there with his father. > >After the judge's refusal to recuse, the day was taken >with examination of Michael Shamos by Charles Sims >of Proskauer and cross-examination by Marty Garbus. >Examination covered the stuff of his deposition, with demo >of movies for comparison of DVD with the DivX Shamos >got from the Net. Or so he claimed to have gotten, while it >was actually obtained by his assistant, Eric Burns, a >student at CMU, who was present and ran the Sony >VAIO demo. > >Under cross-examination by Marty Garbus, Shamos >the phony expert, admitted he could not have conducted >his test for MPAA without the skill and help of real expert, >ERic Burns. As a result Burns is now to become a witness to >tell what he actually did to get the DivX, get it decoded >synchronized and playable. Shamos looked swell while >being examined by Proskauer and got blown away by >Garbus. Even the judge took a few whacks, and approved >Frank Stevenson and Eric Burns as witnesses over Proskauer's >objections. > [...] --- 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 Jul 18 00:29:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07682 for dvd-discuss-outgoing; Tue, 18 Jul 2000 00:29:55 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07678 for ; Tue, 18 Jul 2000 00:29:53 -0400 Received: from ppp.anonymizer.com (c04-082.015.popsite.net [64.24.75.82]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA04499; Mon, 17 Jul 2000 21:31:06 -0700 (PDT) Message-Id: <4.3.2.7.2.20000717212927.00ab45a0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 17 Jul 2000 21:30:04 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <4.1.20000717235754.01bfbe28@law.harvard.edu> References: <200007180146.VAA03613@granger.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 12:23 AM 7/18/2000 -0400, Wendy Seltzer wrote: >If anyone sees additional stories, I'm trying to keep a list on > : Wired News, Reuters, and ZDnet http://www.nytimes.com/library/tech/00/07/biztech/articles/18dvd.html -------------------------------------------------------------------- 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 Tue Jul 18 00:42:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA07871 for dvd-discuss-outgoing; Tue, 18 Jul 2000 00:42:54 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA07868 for ; Tue, 18 Jul 2000 00:42:54 -0400 Received: from 209-122-247-253.s253.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.253]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13EPCf-0006gg-00 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Jul 2000 00:41:57 -0400 Date: Tue, 18 Jul 2000 00:41:52 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 MIME-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1" Content-Transfer-Encoding: 8bit Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > If anyone sees additional stories, I'm trying to keep a list on > : Wired News, Reuters, and > ZDnet > so far. > Hollywood Studio DVD Suit Continues (Associated Press) http://washingtonpost.com/wp-dyn/business/latestap/A60319-2000Jul17.html From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 00:59:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA08060 for dvd-discuss-outgoing; Tue, 18 Jul 2000 00:59:53 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA08057 for ; Tue, 18 Jul 2000 00:59:51 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA30858 for ; Mon, 17 Jul 2000 23:58:39 -0500 Message-ID: <3973E599.8FD6A33C@mninter.net> Date: Tue, 18 Jul 2000 00:05:29 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 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://eon.law.harvard.edu/openlaw/DVD/filings/NY/openlaw-amicus/ memorandum.pdf Contains the judge's recusal refusal. He says it's not timely and that it doesn't meet recusal magnitude. He basically dares the defense to appeal. PS -- Wendy, after all the punishment Shamos took, don't let the defense team forget that it only takes 2 hours to do a full videocapture! There is economic disincentive to use DeCSS in light of this. I suppose Garbus covered that, but with no transcript... On the other hand, all the focus on harm makes me uncomfortable. Harm schmarm, it doesn't circumvent. Even Shamos knows that. I hope a defense expert will testify that it implements CSS, and the DMCA allows this. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 01:29:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA08216 for dvd-discuss-outgoing; Tue, 18 Jul 2000 01:29:20 -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 BAA08213 for ; Tue, 18 Jul 2000 01:29:19 -0400 Received: from ip86.bedford2.ma.pub-ip.psi.net ([38.32.10.86]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13EPva-000075-00 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Jul 2000 01:28:22 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Date: Tue, 18 Jul 2000 01:22:15 -0400 Message-ID: References: <200007180146.VAA03613@granger.mail.mindspring.net> In-Reply-To: <200007180146.VAA03613@granger.mail.mindspring.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 BAA08214 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Great courtroom color from John Young... Regarding the Shamos/Burns Matrix demo, where the MPAA sees a threat it should behold a huge opportunity-- one that isn't dependent on 100BaseTX in dorm rooms... If a DiVX copy of the Matrix, traded on IRC from an unknown source, is virtually identical to a DVD, then there is huge untapped market for movies on disc ready and waiting-- the installed base of CD-ROM drives in Internet-connected PCs. 650MB DiVX films would be accessible to god knows how many tens of millions of clients. Marketing to Internet-connected PCs would allow the studios to try a DIVX-like protection scheme (DiVX DIVX?), or perhaps some other uncracked access control such Broadbridge Media's steganography. It should be noted that this software-only protection scheme would be constantly updateable, meaning that a shaky scheme from 1994-5 wouldn't need to be protected by anti-competitive laws. Also this version of the Matrix was allegedly obtained from a stranger on IRC--who knows how it was decssed, devobbed, and recompressed? A professionally produced MPEG-4, taken from original film assets, would likely be of much higher quality. Also user access control would make bit for bit copying useless (free replication.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 01:56:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA08342 for dvd-discuss-outgoing; Tue, 18 Jul 2000 01:56:33 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA08339 for ; Tue, 18 Jul 2000 01:56:26 -0400 Date: Mon, 17 Jul 2000 22:53:29 -0700 Message-Id: <200007172253.AA1083114086@mail.virtualrecordings.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Robin Gross" To: Subject: [dvd-discuss] DMCA Trial Begins with a Bang! X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: July 17, 2000 Universal City Studios, et al v. 2600 Magazine DMCA Trial Begins with a Bang! EFF's motion to recuse the judge because he had advised plaintiff Time Warner on DVD antitrust issues while at the law firm Paul Weiss was denied without allowing argument at the opening of trial on July 17 in NY federal court. After refusing to allow the defense team to stay the trial so it could appeal the disqualification ruling to the Second Circuit Court of Appeals, Judge Kaplan then ordered the defense team to proceed to trial immediately. The movie studios' first witness was Michael Shamos a Carnegie Melon faculty member who claimed to make and trade a DiVX DVD by using the DeCSS software. On cross-examination by EFF's defense team, Shamos testified that it took 20 hours over a 4-day period to conduct the experiment including 10 hours devoted solely to the synchronization of the film's audio and video. Shamos, who admitted to being paid $30,000 by MPAA for his participation in this case, stated the law firm Proskaur & Rose designed the test and provided him with detailed instructions on precisely what to do. The "technology expert" was also forced to disclose that an assistant Eric Burns conducted most of the experiment and that Shamos has no knowledge of a single incident of illegal copying attributable to DeCSS. Shamos also testified that the studios' lawyers asked him to remove references to the First Amendment and the NY Times (who linked to the software) in early drafts of his court declaration because it would "cloud the case with First Amendment issues." While the courtroom was packed with journalists and concerned Netizens alike, dozens of protesters demonstrated against the studios' broad interpretation of the DMCA outside the courthouse during the trial. Tuesday's testimony is expected to include EFF's technology expert Frank Andrew Stevenson the Norwegian cryptographer who first analyzed the CSS algorithm and published his results. You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ ------------------------------------------------------------------ The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 01:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA08449 for dvd-discuss-outgoing; Tue, 18 Jul 2000 01:58:06 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA08446 for ; Tue, 18 Jul 2000 01:58:05 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id BAA17162; Tue, 18 Jul 2000 01:58:02 -0400 Message-ID: <3973F1EA.D548A1AA@mit.edu> Date: Tue, 18 Jul 2000 01:58:02 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? References: <200007180348.XAA20411@vvr09.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: > > > (1) Both conflicts are judged irrelevant. This means we'll > > be stuck with the record from the show trial on appeal, > > effectively guaranteeing we will lose for good. > > You're assuming that the "show trial record" just won't have the facts > needed to sustain an appeal ("access control" that never denies access to > a work, the market-control features of CSS such as player-key revocation, > lack of a contract with the viewer which could transfer "authority", etc.). > Personally, I don't know --- at any rate, I think a useful trial record > is still achievable and worth working towards. But it looks like an > uphill fight. > Remember Kaplan is the finder-of-fact here, the way Jackson was in the Microsoft case. Unless I'm missing something, there is no reason why he can't find that CSS is access control and therefore DeCSS is circumvention, the way Jackson found Microsoft was a monopoly. My reading about the Microsoft trial suggested that it was very difficult to get findings-of-fact overturned on appeal, and it would be worse for us because we do not have the resources Microsoft has for its appeal. Reading Kaplan's opinion on recusal motion, it seems to me that he is starting out the trial as biased against the defendants as Jackson was when when the Microsoft trial _ended_. For instance, when talking about DVDs and antitrust: "The fundamental issue in this case is whether distribution of DeCSS violates the DMCA by providing a means of circumventing CSS. The question whether defendants' [I think he means plaintiffs' here] actions in making the technology necessary to manufacture equipment capable of playing their DVDs available only to those who license that technology is consistent with the antitrust laws is not at issue here. It is another matter entirely. And in any case, it is not the matter on which Mr. Robinowitz was consulted in May 1994." First, antitrust issues are not a separate matter, and, second, how can Kaplan have decided that already? If CSS is "access control" only by virtue of being "market control" (which is something I thought we wanted to argue) then that raises an antitrust issue that must be addressed. Moreover, even Kaplan concedes Mr. Robinowitz was consulted on antitrust issues related to "Warner's [copyright owner] relationship with Toshiba [player manufacturer] in the development of DVD." Aren't ties between copyright owners and player manufacturers exactly what we're concerned about? That is, if considering CSS an "access control" allows copyright owners and player manufacturers to have relationships that would otherwise be prohibited by antitrust law that is something we want to bring up in our defense --- to motivate a different reading of the DMCA, if nothing else. Also, Kaplan is managing this brilliantly. He squeezed the defendants into a much earlier trial then they wanted, so they would try to delay the trial. By the time this conflict-of-interest concern is discovered, it looks like just another delaying tactic. I get the feeling they are three steps ahead of us and there's nothing we can do about it. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 02:04:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA08591 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:04:41 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA08588 for ; Tue, 18 Jul 2000 02:04:40 -0400 Received: from ppp.anonymizer.com (c04-082.015.popsite.net [64.24.75.82]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA20039; Mon, 17 Jul 2000 23:05:57 -0700 (PDT) Message-Id: <4.3.2.7.2.20000717230335.00a8f710@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 17 Jul 2000 23:04:55 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <3973E599.8FD6A33C@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Correct URL is http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0717-recusal-opinion.pdf It isn't pretty. At 12:05 AM 7/18/2000 -0500, Chris Moseng wrote: >http://eon.law.harvard.edu/openlaw/DVD/filings/NY/openlaw-amicus/ >memorandum.pdf > >Contains the judge's recusal refusal. He says it's not timely and that >it doesn't meet recusal magnitude. He basically dares the defense to >appeal. -------------------------------------------------------------------- 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 Tue Jul 18 02:15:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA08822 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:15:21 -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 CAA08819 for ; Tue, 18 Jul 2000 02:15:20 -0400 Message-ID: <20000718061349.14461.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Mon, 17 Jul 2000 23:13:49 PDT Date: Mon, 17 Jul 2000 23:13:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 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 --- Chris Moseng wrote: > http://eon.law.harvard.edu/openlaw/DVD/filings/NY/openlaw-amicus/ > memorandum.pdf Wrong URL, but close enough so that I found it. You meant http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0717-recusal-opinion.pdf I read the whole thing. I think Kaplan actualy predicatable job of fighting off the claim of personal bias toward Garbus based on the note reading allegation aka Garbus-Abrams incident. However, his rebuttal to the Time-Warner DVD client matter basically rests solely on this (he admits it's timely): "Based on the information submitted by defendants, it would be impossible to conclude that the unspecified “DVD matters” on which Mr. Robinowitz was consulted as antitrust counsel had any reasonable relationship to the questions presented in this lawsuit." Of course antitrust is a big issue for three reasons: tying exists between players and movies per analogy with US v. Paramount. Misuse of copyright is a form of antitrust matter having to do with anticompetitive practices such as trying to stop reverse engineering through copyright licences. The same holds true for viewing authorization models - antitrust issues underly these. Judge Kaplan clearly believes they are not at play in this case because he is confident that his firm provided proper legal guidance during development to avoid such issues. For him to consider these as issues would require him to find fault the work of his own firm. > Contains the judge's recusal refusal. He says it's not timely and > that it doesn't meet recusal magnitude. He basically dares the > defense to appeal. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 02:32:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09157 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:32:08 -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 CAA09154 for ; Tue, 18 Jul 2000 02:32:07 -0400 Message-ID: <20000718063041.15394.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Mon, 17 Jul 2000 23:30:41 PDT Date: Mon, 17 Jul 2000 23:30:41 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > Correct URL is http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0717-recusal-opinion.pdf > > It isn't pretty. What do you mean by "It isn't pretty". ... not pretty for whom? Kaplan or Garbus? It seems like his reasoning would imply that if antitrust issues do come up then he's got to go. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 02:44:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09334 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:44:55 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA09331 for ; Tue, 18 Jul 2000 02:44:54 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id XAA14205 for ; Mon, 17 Jul 2000 23:43:56 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA15723; Mon, 17 Jul 2000 23:42:12 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 17 Jul 2000 23:41:54 -0700 Organization: A poorly-installed InterNetNews site Lines: 26 Distribution: isaac Message-ID: <8l0u7i$fba$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1D03@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > David Wagner wrote: > > Though I too initially found it surprising that anyone could consider > > CSS an effective protection mechanism, I couldn't find any language in > > the DMCA suggesting that "effective" imposes any substantive > > requirement on the technical security level of the TPM. > > However, there are certain -capabilities- that must be present > in order to be a TPM ... Yes, of course. But those requirements are not imposed by the word "effective"; those requirements are imposed by other parts of the DMCA. Indeed, as I said later in my note, some other people on this mailing list have suggested looking at the authority model as one example of more substantial limits on what can qualify as a TPM. I was responding to a post which suggested that CSS shouldn't be protected by the DMCA, since it is "effective". That suggestion appears unfruitful. The original poster seemed to be arguing that, since the CSS is awfully weak, it seems pretty ineffective in practice; and, since the DMCA requires TPM's to be "effective", CSS shouldn't count as a TPM. Such an argument does not appear to have any support in the text of the law, because the DMCA goes out of the way to define the word "effective" in a way which does not impose much of a requirement on the TPM. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 02:48:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09486 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:48:35 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA09483 for ; Tue, 18 Jul 2000 02:48:33 -0400 Received: from ppp.anonymizer.com (c04-082.015.popsite.net [64.24.75.82]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA28132; Mon, 17 Jul 2000 23:49:52 -0700 (PDT) Message-Id: <4.3.2.7.2.20000717233712.00b1eba0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 17 Jul 2000 23:48:51 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <20000718063041.15394.qmail@web510.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 11:30 PM 7/17/2000 -0700, Bryan Taylor wrote: >--- "James S. Tyre" wrote: > > Correct URL is >http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0717-recusal-opinion.pdf > > > > It isn't pretty. > >What do you mean by "It isn't pretty". ... not pretty for whom? Kaplan >or Garbus? > >It seems like his reasoning would imply that if antitrust issues do >come up then he's got to go. I'm not an expert on seeking to disqualify federal judges - I've done it in state court, but I've neither researched it nor done it in fed. court - but Kaplan seems to be correct in saying that there are real timeliness issues, since Garbus' firm should have known of the Paul, Weiss/TW connection long ago. And what Kaplan says about bias against a party, not the party's attorney, is in accordance with my understanding of the rule. Kaplan is entirely correct when he says that the relationship between Paul, Weiss and TW is well-known. Just from reading the things I read in my particular field of law, I've known that for some time. The only thing I didn't know until this broke was that Kaplan was at PW before going to the bench. I'm not 100% convinced Kaplan is right on this one. But after reading his ruling, I am looking at this issue a good deal differently than when I read the motion this morning. -------------------------------------------------------------------- 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 Tue Jul 18 02:50:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA09541 for dvd-discuss-outgoing; Tue, 18 Jul 2000 02:50:09 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA09538 for ; Tue, 18 Jul 2000 02:50:08 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id XAA14222 for ; Mon, 17 Jul 2000 23:49:10 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id XAA15752; Mon, 17 Jul 2000 23:47:26 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Another approach to "semantics" Date: 17 Jul 2000 23:47:17 -0700 Organization: A poorly-installed InterNetNews site Lines: 22 Distribution: isaac Message-ID: <8l0uhl$fc7$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1D04@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > Well, if they aren't copyrighted, then we don't > even need to invoke fair use then, do we? Fair use is a defense to a claim of copyright infringement. But copyright infringement is irrelevant; the MPAA has never asserted that copying the keys might violate copyright, and I doubt that such an assertion would ever carry much water. (Is _Sega v Accolade_ the right case to cite here? I'm going from memory, so probably not.) What folks _have_ expressed concern over is that copying such keys might render your 1201(a)-authority invalid, if the copyright holder so chooses to revoke authority. I was responding to someone's suggestion that "space-shifting" might be a defense against such a concern. My point is that, since revoking authority is not a claim of copyright infringement, I can't see how a defense to copyright infringment would be relevant. This concern seems to turn, instead, on just how much leeway copyright holders have over their authority, and on the scope of that authority, and on how and when they must communicate their authority, if ever. Am I missing something, or is this just a big miscommunication? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 04:14:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA09997 for dvd-discuss-outgoing; Tue, 18 Jul 2000 04:14:37 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA09994 for ; Tue, 18 Jul 2000 04:14:33 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id EAA18543; Tue, 18 Jul 2000 04:14:31 -0400 Message-ID: <397411E6.E8AD7F80@mit.edu> Date: Tue, 18 Jul 2000 04:14:30 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 References: <4.3.2.7.2.20000717233712.00b1eba0@127.0.0.1> 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 "James S. Tyre" wrote: > > At 11:30 PM 7/17/2000 -0700, Bryan Taylor wrote: > > >--- "James S. Tyre" wrote: > > > Correct URL is > >http://eon.law.harvard.edu/openlaw/DVD/filings/NY/0717-recusal-opinion.pdf > > > > > > It isn't pretty. > > > >What do you mean by "It isn't pretty". ... not pretty for whom? Kaplan > >or Garbus? > > > >It seems like his reasoning would imply that if antitrust issues do > >come up then he's got to go. > > I'm not an expert on seeking to disqualify federal judges - I've done it in > state court, but I've neither researched it nor done it in fed. court - but > Kaplan seems to be correct in saying that there are real timeliness issues, > since Garbus' firm should have known of the Paul, Weiss/TW connection long > ago. And what Kaplan says about bias against a party, not the party's > attorney, is in accordance with my understanding of the rule. > > Kaplan is entirely correct when he says that the relationship between Paul, > Weiss and TW is well-known. Just from reading the things I read in my > particular field of law, I've known that for some time. The only thing I > didn't know until this broke was that Kaplan was at PW before going to the > bench. > > I'm not 100% convinced Kaplan is right on this one. But after reading his > ruling, I am looking at this issue a good deal differently than when I read > the motion this morning. I thought that the Paul, Weiss/TW connection itself was not the issue, but rather the fact that the Paul, Weiss/TW connection included advice on DVD matters related to antitrust. Or was that fact common knowledge before all of this broke? Now that this has broke I wish I had fleshed out my feeling that the MPAA has been subtly leading us toward antitrust law. I thought they were doing this because antitrust law is looked at suspiciously enough in some circles that they thought it was good ground to defend. Now it looks like the anvil our defense will be smashed on (since Kaplan has decided antitrust is irrelevant). I also noted some slick tricks Kaplan's trying to pull off in the opinion. He's arguing all of this is irrelevant because he left in August 1994, well before CSS and the DMCA were more than a gleam in the MPAA's eye. The real bias issue (that leads me to believe that the trial will not be fair) is that Kaplan would be strongly inclined to affirm the legal work of his former colleagues. In fact, from the recusal opinion, I think he has already done so, without the defendants having had a chance to argue the issue. Second, he's arguing that this is irrelevant because Paul, Weiss did not advise Time Warner about "copyright or encryption" issues. Well, articles exist (I paid for one from an archive) that indicate that Hollywood's concern about DVD standards included being able to implement a copy protection system for their works. An essential part of making such a system work is controlling the player environment (we'd probably need testimony for this), so "player market control" must have been some of what Toshiba and Time Warner were talking about in 1994-1995, when Paul, Weiss was advising them. This advice need not directly address "copyright or encryption" since "market control" need not directly involve those subjects (i.e. there can be market control through patents, trade secrets, legislation, and all sorts of other things). Just because today's iteration of "market control" involves copyright and encryption doesn't mean that the "market control" discussions had to mention them specifically. - Ravi Nanavati - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 06:10:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA11033 for dvd-discuss-outgoing; Tue, 18 Jul 2000 06:10:17 -0400 Received: from smtp10.atl.mindspring.net (smtp10.atl.mindspring.net [207.69.200.246]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA11030 for ; Tue, 18 Jul 2000 06:10:15 -0400 Received: from jy01 (user-2inij3u.dialup.mindspring.com [165.121.76.126]) by smtp10.atl.mindspring.net (8.9.3/8.8.5) with SMTP id GAA22998 for ; Tue, 18 Jul 2000 06:09:18 -0400 (EDT) Message-Id: <200007181009.GAA22998@smtp10.atl.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 06:05:12 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Re: Wired Coverage by Declan McCullagh In-Reply-To: <20000718040949.8170.qmail@web514.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 Declan was betrayed by the early start time, too, along with Carl Kaplan from the NYT, a Variety reporter, and eight or so of us who had to bide our time in the lobby waiting for a break. It was pleasurable watching Declan and Carl sweat blood at not being able to get in to the courtroom, and having to button-hole people rushing to the bathroom, hearing those who lied "I don't remember" then dash for relieve. Robin Gross, all praise her equipose, did take time to brief we anxious, told about the early start, the motions to recuse and their dismissal, the soon to be publicized documents. At the break Declan ran over spectators like Costanza escaping a fire, to get hardcopy of the recusal motions (probably stole them from the huge pile of boxes of trial documents from both sides) and, amazingly, crouched in a corner to write and wirelessly file his early bird, not all of which was purely imaginary. I was impressed at how the journalists interviewed each other and the spinners working the scene to understand FTW was going on. I lied to several myself, all of which was used to degrade 1A to 1Z. This from Learned Hand: if you want the truth, be there, or Monday AM QB. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 07:32:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA11427 for dvd-discuss-outgoing; Tue, 18 Jul 2000 07:32:39 -0400 Received: from europe.std.com (europe-e.std.com [192.74.137.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA11424 for ; Tue, 18 Jul 2000 07:32:37 -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 HAA27202 for ; Tue, 18 Jul 2000 07:31:41 -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 HAA08902 for ; Tue, 18 Jul 2000 07:28:48 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.1.20000717235754.01bfbe28@law.harvard.edu> References: <4.1.20000717235754.01bfbe28@law.harvard.edu> Date: Tue, 18 Jul 2000 07:28:34 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id HAA11425 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 12:23 AM -0400 7/18/2000, Wendy Seltzer wrote: >Thanks for the update!  > >As we've already seen, it sounds as though the plaintiffs are trying to >paint the DMCA as their bulwark against theivery, with DeCSS as the chink >they have to repair before it gets too large. The defense replies that >DeCSS isn't what they need to stop, DMCA isn't the right wall to build, and >there's no rain in the forecast, much less a flood. (Or I could just be >spinning bad analogies, since I couldn't be there for a firsthand view.) > >If anyone sees additional stories, I'm trying to keep a list on > : Wired News, Reuters, and ZDnet >so far. > There was a long story about the trial on National Public Radio news monday morning. I couldn't find it on their web site (http://www.npr.org) however Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 07:47:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA11588 for dvd-discuss-outgoing; Tue, 18 Jul 2000 07:47:59 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA11584 for ; Tue, 18 Jul 2000 07:47:58 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id HAA19115; Tue, 18 Jul 2000 07:47:56 -0400 Message-ID: <397443EC.98CA823E@mit.edu> Date: Tue, 18 Jul 2000 07:47:56 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 References: <4.1.20000717235754.01bfbe28@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 "Arnold G. Reinhold" wrote: > > There was a long story about the trial on National Public Radio news > monday morning. I couldn't find it on their web site > (http://www.npr.org) however > > Arnold Reinhold It was on Morning Edition. Here's the URL: http://search.npr.org/cf/cmn/cmnpd01fm.cfm?PrgDate=07/17/2000&PrgID=3 The program is confusingly titled: Investment Protection or Theft? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 09:07:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12138 for dvd-discuss-outgoing; Tue, 18 Jul 2000 09:07:43 -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 JAA12135 for ; Tue, 18 Jul 2000 09:07:42 -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:2.21) with ESMTP id JAA28952 for ; Tue, 18 Jul 2000 09:06:47 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA14692; Tue, 18 Jul 2000 09:06:45 -0400 (EDT) Date: Tue, 18 Jul 2000 09:06:45 -0400 (EDT) Message-Id: <200007181306.JAA14692@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? In-Reply-To: <3973F1EA.D548A1AA@mit.edu> References: <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > > You're assuming that the "show trial record" just won't have the > > facts needed to sustain an appeal ("access control" that never > > denies access to a work, the market-control features of CSS such > > as player-key revocation, lack of a contract with the viewer > > which could transfer "authority", etc.). Personally, I don't > > know --- at any rate, I think a useful trial record is still > > achievable and worth working towards. But it looks like an > > uphill fight. > > > > Remember Kaplan is the finder-of-fact here, the way Jackson was > in the Microsoft case. Unless I'm missing something, there is > no reason why he can't find that CSS is access control and > therefore DeCSS is circumvention, the way Jackson found > Microsoft was a monopoly. Hmmm... I was assuming that circumvention would be a conclusion of law, based on the application of the definitions in the law to the facts of the case (like the ones I listed). If an appeals court would regard "circumvention" as a finding of fact, then you're right, it does look bad... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 09:27:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12451 for dvd-discuss-outgoing; Tue, 18 Jul 2000 09:27:21 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA12448 for ; Tue, 18 Jul 2000 09:27:19 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id JAA19360; Tue, 18 Jul 2000 09:27:17 -0400 Message-ID: <39745B35.35BAB6DB@mit.edu> Date: Tue, 18 Jul 2000 09:27:17 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? References: <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@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: > Hmmm... I was assuming that circumvention would be a conclusion of > law, based on the application of the definitions in the law to the > facts of the case (like the ones I listed). If an appeals court would > regard "circumvention" as a finding of fact, then you're right, it > does look bad... > > rst This is an ambiguity. As far as I can tell, "circumvention" or "monopoly" can be considered a factish finding-of-law or a lawish finding-of-fact, and I would think that we can't depend on which side an appeals court would come down on. If we're lucky, we'll get a look at the Microsoft appeals before our own. They're dealing with the same sort of issues and have very experienced lawyers and much more time than we do to wrestle with these issues. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 09:53:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA12757 for dvd-discuss-outgoing; Tue, 18 Jul 2000 09:53:45 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA12754 for ; Tue, 18 Jul 2000 09:53:43 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id IAA29929 for ; Tue, 18 Jul 2000 08:52:26 -0500 Message-ID: <3974605D.E274334@mninter.net> Date: Tue, 18 Jul 2000 08:49:17 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 References: <4.3.2.7.2.20000717233712.00b1eba0@127.0.0.1> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > And what Kaplan says about bias against a party, not the party's > attorney, is in accordance with my understanding of the rule. > -------------------------------------------------------------------- > James S. Tyre mailto:j.s.tyre@cyberpass.net I would note that bias for the plaintiffs (as noted in Garbus' affadavit) *is* bias against the defendant party, no matter how Kaplan slices it. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 10:00:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12846 for dvd-discuss-outgoing; Tue, 18 Jul 2000 10:00:11 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12843 for ; Tue, 18 Jul 2000 10:00:10 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id JAA29149 for ; Tue, 18 Jul 2000 09:59:15 -0400 Date: Tue, 18 Jul 2000 09:59:15 -0400 (EDT) From: Ole Craig To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] New Depositons Available In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E58@c100.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 07/17/00 at 23:55, 'twas brillig and Leland Ray scrobe: [...] > So in the depositions they try and get witnesses to say > that you don't have to distribute source code to discuss > a cryptographic system, and that experts can discuss such > systems within their own closed community and keep > secrets. (notice questions about sending encrypted email, > further, notice the questions to Mr. Craig over if > it would be possible for one member of LiViD to keep > the CSS "secret"). At the time I thought it was a good idea to lay the "Open Source == ``public as software developer''" foundation for anticompetitive practice arguments. Maybe it's worth fleshing out the point that Open-Source doesn't work without, well, open source. [...] > 3. Piracy is rampant on the internet. > > Continuing questions about Napster, transfer times, ease > of data transfer, show that the P's really want to show that > they have an extraordinary interest in casual copying because > systems such as napster and mesh turn causal copiers into > full scale pirates. I heard a good point this morning on NPR. (Didn't hear the whole segment... I was busy stacking Z's.) Whomever it was pointed out that favorite music is something we listen to hundreds of times. We bring it with us in the car, jogging, working out, at dinner, &etc. Hell, the damn radio stations overplay what they think are people's "favorites" to the point that even if you like the song you don't want to hear it any more. Music is ubiquitous because it can be incorporated into most other activities to make them more enjoyable. I've seen Star Wars less than 15 times in the more-than-20 years its been around (and I'm including seeing it in the theater when I was 7) and it's definitely one of my favorite movies. [...] > A point I have never seen made, not by any witness, is that > in any open source process, not only is all the source > code available, but frequently all the debate and design > discussions are available as well. Unlike in a company, where > everyone tries to -- in public at least -- maintain a degree > of fidelity to company interests, open source developers work > for their own reasons. It is likely that several feel "screw the > MPAA, let's pirate" and trumpet that around. Such speech would > not be suppressed like it would in a corporate atmosphere. I'm sure Chris DiBona can go there. If not, or if he needs backing, I think I could explain why this is important from my perspective: when an open-sourced product isn't working for one of my users (who are all CS profs and grad students) I can use the development docs as part of my troubleshooting effort. This can provide insight as to how things are supposed to work. > DeCSS is clearly a utility with many different uses, but it > is a mid-product. Linux survives in part because of the > ease of data transfer. There is great interest in making every > data format -- including CSSed DVDs as available as possible. [...] I could probably also go into the *nix "philosophy" of "little tools put together" as a lead-in to why it's important to have a tool that does just one part of the process. (Defense have asked me whether I have any ideas as to where they can expand/direct my testimony..) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 10:18:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA12932 for dvd-discuss-outgoing; Tue, 18 Jul 2000 10:18:33 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA12929 for ; Tue, 18 Jul 2000 10:18:32 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id JAA00579 for ; Tue, 18 Jul 2000 09:17:16 -0500 Message-ID: <39746621.81C4BD6A@mninter.net> Date: Tue, 18 Jul 2000 09:13:53 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New Depositons Available 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 Ole Craig wrote: > At the time I thought it was a good idea to lay the "Open > Source == ``public as software developer''" foundation for > anticompetitive practice arguments. Maybe it's worth fleshing out the > point that Open-Source doesn't work without, well, open source. Yes. > I could probably also go into the *nix "philosophy" of > "little tools put together" as a lead-in to why it's important to > have a tool that does just one part of the process. Yes, yes! It's more than important, it is fundamental. A program like DeCSS, without the UI, is a perfect example of one program in a suite of programs, that, working together, constitute a DVD player. Without being able to distribute DeCSS, or a program like it, the studios effect market control over one or more companies who want to create a player. Now that I think about it, we don't need* to rely on the public as a manufacturer, we should just ask Red Hat or Slackware if they would like to include a DVD player in their distro. They will need an open source player to market it, and the studios will make that impossible. Can the studios argue that CSS cannot be implemented in a given instance? Implementing CSS is the baliwick of the DVDCCA, so I presume we can argue in this court that implementations of CSS are not, themselves, illegal. This is a good path. Thus this lawsuit is a form of market control. The DVDCCA should be suing for CSS-implementations (and losing), not the studios, because it introduces the anti-competitive argument. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 10:44:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA13073 for dvd-discuss-outgoing; Tue, 18 Jul 2000 10:44:22 -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 KAA13070 for ; Tue, 18 Jul 2000 10:44:21 -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:2.21) with ESMTP id KAA09628 for ; Tue, 18 Jul 2000 10:43:26 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA19968; Tue, 18 Jul 2000 10:43:24 -0400 (EDT) Date: Tue, 18 Jul 2000 10:43:24 -0400 (EDT) Message-Id: <200007181443.KAA19968@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] New Depositons Available In-Reply-To: References: <611C0CE12596D311B466009027D5E7591E4E58@c100.clearway.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ole Craig writes: > (Defense have asked me whether I have any ideas as to where > they can expand/direct my testimony..) Hmmm... if they buy into the "market control, not access control" line, or "access to markets, not to works", then your professional experience with real access control technologies might be usefully apropos, to compare and contrast... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 10:49:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA13172 for dvd-discuss-outgoing; Tue, 18 Jul 2000 10:49:00 -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 KAA13169 for ; Tue, 18 Jul 2000 10:48:59 -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:2.21) with ESMTP id KAA10333 for ; Tue, 18 Jul 2000 10:48:04 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA21712; Tue, 18 Jul 2000 10:48:03 -0400 (EDT) Date: Tue, 18 Jul 2000 10:48:03 -0400 (EDT) Message-Id: <200007181448.KAA21712@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New Depositons Available In-Reply-To: <39746621.81C4BD6A@mninter.net> References: <39746621.81C4BD6A@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Can the studios argue that CSS cannot be implemented in a given > instance? Implementing CSS is the baliwick of the DVDCCA, so I presume > we can argue in this court that implementations of CSS are not, > themselves, illegal. This is a good path. It sure looks to me like they have argued that CSS cannot be implemented without a license. Quoting Gold from the preliminary injunction hearing: Circumvent means to descramble, and that's what DeCSS does. A technological measure effectively controls the access here to do the protected work and CSS is such a measure and it's designed to control access to our copyrighted works. Because CSS is an encryption technology, you've got to have a software key to open it, so CSS qualifies as an access control measure. And all of the statutory requirements are met, and defendants are clearly violating them. Combine that with their contention that CSS keys are only available pursuant to a license from the DVDCCA, and, well, there you go. In effect, they're claiming that because CSS is a "cryptographic" process, they have the right to determine in arbitrary ways who may perform that process. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 11:14:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13292 for dvd-discuss-outgoing; Tue, 18 Jul 2000 11:14:44 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA13289 for ; Tue, 18 Jul 2000 11:14:43 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id LAA31173 for ; Tue, 18 Jul 2000 11:13:48 -0400 Date: Tue, 18 Jul 2000 11:13:48 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: [dvd-discuss] Shamos's testimony, sony Vaio laptop 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 has been bugging me. The Shamos'n'Burns Travelling Show apparently demonstrated yesterday that there's not much difference between a DVD and a DIVX version of the same movie -- on a laptop screen? Duh! I have damn good eyesight, and on a 13" or 14" Vaio screen I likely wouldn't be able to tell the difference between DVD and 2nd-gen VHS. Defense should request the same demonstration, but pipe the laptop's output through a 21" monitor, or (better yet) a multimedia projector. I bet there'd be quite a bit of difference. (e.g. http://www.epson.com/mul_proj/projectors/pl710c/index.html) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 11:28:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13542 for dvd-discuss-outgoing; Tue, 18 Jul 2000 11:28:05 -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 LAA13539 for ; Tue, 18 Jul 2000 11:28:04 -0400 Message-ID: <20000718152637.29979.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 18 Jul 2000 08:26:37 PDT Date: Tue, 18 Jul 2000 08:26:37 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "James S. Tyre" wrote: > I'm not an expert on seeking to disqualify federal judges - I've done > it in state court, but I've neither researched it nor done it in > fed. court - but Kaplan seems to be correct in saying that there > are real timeliness issues, since Garbus' firm should have known of > the Paul, Weiss/TW connection long ago. The timeliness issue seemed really out of tune to me. It's almost like Kaplan is saying "yeah, you caught me, but you didn't catch me it time". Maybe Garbus did know about the Kaplan-PW-TW connection before and decided not to risk offending the judge by bringing it up. I'd say Kaplan should have recused himself if this is truly "common knowledge. It smacks of bias -- a Plaintiff has a client-attorney relationship with the Judge on an issue related to DVD's. Kaplan should have recused himself immediately on getting the case. Also, so what if it's common knowledge -- the defense discovers it when they discover it. No one is born knowing all well known things. Most importantly, Garbus only discovered that Paul, Weiss was involved in DVD antitrust this week, as he states in his affidavit. This extends the damage of the former relationship. Even Kaplan admits that this makes the accusation timely. > And what Kaplan says about bias against a party, not the > party's attorney, is in accordance with my understanding of the rule. Well this might apply to the Garbus-Abrams affair, which was weak anyway, but Corley is surely damaged by the Judge's prior DVD antitrust relationship. How does this arguement apply -- prior dealings with the Plaintiff are not related to the defense attorney in any way. > Kaplan is entirely correct when he says that the relationship between > Paul, Weiss and TW is well-known. This seems like a really lame argument. The judges connection to the plaintiff is too "well-known" to generate bias? Is there any precedent for a standard like this? > I'm not 100% convinced Kaplan is right on this one. But after > reading his ruling, I am looking at this issue a good deal > differently than when I read the motion this morning. I do think the Garbus-Abrams incident was properly disposed of. It makes me mad that Kaplan has decided for the defense that DVD antitrust issues are not at play. Clearly the defense plans to bring these up, and we've talked about them for months. In fact, I recall Garbus mentioning US v. Paramount in an interview (can anybody dig this up?). __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 11:27:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13534 for dvd-discuss-outgoing; Tue, 18 Jul 2000 11:27:57 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA13531 for ; Tue, 18 Jul 2000 11:27:56 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id LAA19655; Tue, 18 Jul 2000 11:27:46 -0400 Message-ID: <39747772.9562E3C4@mit.edu> Date: Tue, 18 Jul 2000 11:27:46 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop 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 Ole Craig wrote: > > This has been bugging me. The Shamos'n'Burns Travelling Show > apparently demonstrated yesterday that there's not much difference > between a DVD and a DIVX version of the same movie -- on a laptop > screen? > > Duh! I have damn good eyesight, and on a 13" or 14" Vaio > screen I likely wouldn't be able to tell the difference between DVD > and 2nd-gen VHS. Defense should request the same demonstration, but > pipe the laptop's output through a 21" monitor, or (better yet) a > multimedia projector. I bet there'd be quite a bit of difference. > > (e.g. http://www.epson.com/mul_proj/projectors/pl710c/index.html) > > Ole > -- > Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * > CS Computing Facility, UMass * for public key > > Thomas Penfield Jackson for President! Get the spiffiest sound system you can as well. Lots of people (my family included) upgraded sound systems to take advantage of DVDs. A laptop speaker could not possibly do The Matrix justice, after all, a stereo TV without surround sound does not do The Matrix justice. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 11:30:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA13826 for dvd-discuss-outgoing; Tue, 18 Jul 2000 11:30:18 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA13823 for ; Tue, 18 Jul 2000 11:30:17 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id LAA19667; Tue, 18 Jul 2000 11:30:15 -0400 Message-ID: <39747807.7CF268B1@mit.edu> Date: Tue, 18 Jul 2000 11:30:15 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop 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 Ole Craig wrote: > > This has been bugging me. The Shamos'n'Burns Travelling Show > apparently demonstrated yesterday that there's not much difference > between a DVD and a DIVX version of the same movie -- on a laptop > screen? > > Duh! I have damn good eyesight, and on a 13" or 14" Vaio > screen I likely wouldn't be able to tell the difference between DVD > and 2nd-gen VHS. Defense should request the same demonstration, but > pipe the laptop's output through a 21" monitor, or (better yet) a > multimedia projector. I bet there'd be quite a bit of difference. > This is also a way to expand your testimony. Be present for the defense's demonstration and testify to your ability to see (and hear, as mentioned in my previous email) the quality difference. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 12:04:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14245 for dvd-discuss-outgoing; Tue, 18 Jul 2000 12:04:10 -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 MAA14242 for ; Tue, 18 Jul 2000 12:04:09 -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:2.21) with ESMTP id MAA21644 for ; Tue, 18 Jul 2000 12:03:14 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA17831; Tue, 18 Jul 2000 12:03:13 -0400 (EDT) Date: Tue, 18 Jul 2000 12:03:13 -0400 (EDT) Message-Id: <200007181603.MAA17831@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop In-Reply-To: <39747807.7CF268B1@mit.edu> References: <39747807.7CF268B1@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > This is also a way to expand your testimony. Be present for the > defense's demonstration and testify to your ability to see > (and hear, as mentioned in my previous email) the quality > difference. Hmmm... are witnesses allowed to attend the testimony of another witness? I thought that as a general rule, they weren't, but I could easily be wrong (or misapplying rules from another jurisdiction). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 12:17:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14373 for dvd-discuss-outgoing; Tue, 18 Jul 2000 12:17:24 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14370 for ; Tue, 18 Jul 2000 12:17:23 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id MAA19791; Tue, 18 Jul 2000 12:17:22 -0400 Message-ID: <39748312.9F0E47D5@mit.edu> Date: Tue, 18 Jul 2000 12:17:22 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop References: <39747807.7CF268B1@mit.edu> <200007181603.MAA17831@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: > > Ravi Nanavati writes: > > This is also a way to expand your testimony. Be present for the > > defense's demonstration and testify to your ability to see > > (and hear, as mentioned in my previous email) the quality > > difference. > > Hmmm... are witnesses allowed to attend the testimony of another > witness? I thought that as a general rule, they weren't, but I could > easily be wrong (or misapplying rules from another jurisdiction). > > rst I was thinking along the lines of the defense planning their quality demonstrations as part of Ole's testimony so that issue would not come up. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 12:26:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14580 for dvd-discuss-outgoing; Tue, 18 Jul 2000 12:26:10 -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 MAA14577 for ; Tue, 18 Jul 2000 12:26:09 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CQTR>; Tue, 18 Jul 2000 09:25:23 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D0B@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 18 Jul 2000 09:25:18 -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 That argument was about the word "effective" as in "how good is it at doing it's job". I think we mostly agree that the meaning in 1201 is as in "in effect". However, to "in effect" be an access control mechanism, you gotta do certain things. My argument isn't about how well or poorly the thing does it's job as an access control mechanism, but whether it can do the job of an access control mechanism at all (to be "in effect" an access control mechanism). The answer to which I believe to be "no, it can't". The only issue I can see is whether a TPM must be an access control device, or whether there are other types of TPMs. (I can think of one off the top of my head -- copy control -- but CSS doesn't do that job either) -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Monday, July 17, 2000 11:42 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Another approach to "semantics" > > > Richard Hartman wrote: > > David Wagner wrote: > > > Though I too initially found it surprising that anyone > could consider > > > CSS an effective protection mechanism, I couldn't find > any language in > > > the DMCA suggesting that "effective" imposes any substantive > > > requirement on the technical security level of the TPM. > > > > However, there are certain -capabilities- that must be present > > in order to be a TPM ... > > Yes, of course. But those requirements are not imposed by the word > "effective"; those requirements are imposed by other parts of > the DMCA. > > Indeed, as I said later in my note, some other people on this mailing > list have suggested looking at the authority model as one example of > more substantial limits on what can qualify as a TPM. > > I was responding to a post which suggested that CSS shouldn't > be protected > by the DMCA, since it is "effective". That suggestion > appears unfruitful. > > The original poster seemed to be arguing that, since the CSS > is awfully > weak, it seems pretty ineffective in practice; and, since the DMCA > requires TPM's to be "effective", CSS shouldn't count as a > TPM. Such an > argument does not appear to have any support in the text of the law, > because the DMCA goes out of the way to define the word "effective" > in a way which does not impose much of a requirement on the TPM. > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 12:41:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14638 for dvd-discuss-outgoing; Tue, 18 Jul 2000 12:41:51 -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 MAA14635 for ; Tue, 18 Jul 2000 12:41:50 -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:2.21) with ESMTP id MAA27176 for ; Tue, 18 Jul 2000 12:40:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA01240; Tue, 18 Jul 2000 12:40:54 -0400 (EDT) Date: Tue, 18 Jul 2000 12:40:54 -0400 (EDT) Message-Id: <200007181640.MAA01240@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D0B@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D0B@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > The only issue I can see is whether a TPM must be > an access control device, or whether there are other > types of TPMs. (I can think of one off the top of > my head -- copy control -- but CSS doesn't do that > job either) It must be an access control device to be covered under 1201(a); copy control is 1201(b). However, note the following from David Carson of the LOC and Time-Warner's Dean Marks at the Stanford LOC hearing (with one editorial interpolation in [square brackets]): 3 MR. CARSON: Well, if we get a chance, 4 in a while. But I sort of would like to stick with 5 what I was talking about with Mr. Marks. 6 It strikes me that what we are 7 describing is perhaps a copying control device in 8 access control clothing. In other words, you've got 9 a device that controls access to a work, but not in 10 the way that, certainly before this rulemaking 11 began, I thought we were talking about. We were 12 talking about access control devices. 13 In other words, I assumed -- naively, 14 perhaps -- that a technological measure that 15 controls access to a work, the purpose of that is to 16 make sure that authorized users and only authorized 17 users are getting access to the works. So if I paid 18 the price to the copyright owner otherwise be able 19 to use that work, then I'm entitled to use it. 20 And if he somehow gets access to it by 21 circumventing encryption or passwords, or whatever, 22 then she's in trouble because she's not an 23 authorized user. I'm not in trouble because I am. 24 That's got nothing to do, as far as I can tell, with 25 what you're talking about. PAGE 246 1 What you're really talking about, I 2 think, is an access control measure that is designed 3 to channel someone towards a device which has copy 4 controls on it. Is that a fair description, or am I 5 misdescribing it? [Well, yes --- except that as you just got through saying, it's *not* an access control measure as the term is properly understood. But, let's watch Marks try to project some real access control functionality into it, anyway:] 6 MR. MARKS: I think it's partially a 7 fair description. I think it is also used -- the 8 fact that the work is encrypted is used to try and 9 guarantee that the user has legitimately -- has 10 legitimate access to the work as well. I mean, I 11 don't think it's completely devoid, the CSS system, 12 of trying to ensure that those people that -- for 13 example, would just simply duplicate the DVD disks - 14 - you know, pirates who would duplicate the DVD 15 disks. 16 And if there were pirate players that 17 were unlicensed, they wouldn't be able to play those 18 disks because they were encrypted with CSS. That 19 serves an access control function as well. 20 MR. CARSON: But a duplicated -- 21 MR. MARKS: A duplicated DVD disk is 22 going to duplicate the CSS encryption. 23 MR. CARSON: And can be played on any 24 legitimate player. PAGE 247 1 MR. MARKS: And can be played on any 2 legitimate player, legitimate licensed CSS player. 3 And not be played on non-licensed players. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 12:55:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14906 for dvd-discuss-outgoing; Tue, 18 Jul 2000 12:55:13 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA14903 for ; Tue, 18 Jul 2000 12:55:12 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PV90>; Tue, 18 Jul 2000 12:58:54 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E5A@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] New Depositons Available Date: Tue, 18 Jul 2000 12:58:31 -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 Well, it is interesting how much the P's have avoided discussing the specific license or licensing terms. When I first started thinking about this case, I wondered if it would be possible to make a player that was engineered independently but otherwise followed all license terms. The problem is, if you read the CSS license, a great deal of it consists of keeping the algorithm and code secret. So it would not be possible to have an open source player even if it did not allow copying. The reason the Ps have not discussed the license, is that the DMCA allows the functional code of a TPM to be a legal lock, irrespective of the license to use that code. The DMCA provides a split that allows keeping the license a secret. One thing that seems to come out on this list is that as you analyze the statutory requirements, it is very difficult to keep the license agreement out. But when you include the license agreement, now you have contractual issues that go well beyond 1201. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 13:23:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15295 for dvd-discuss-outgoing; Tue, 18 Jul 2000 13:23:22 -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 NAA15292 for ; Tue, 18 Jul 2000 13:23:19 -0400 Received: from travel-net.com (trj43.travel-net.com [207.176.160.43]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id MAA05228 for ; Tue, 18 Jul 2000 12:20:23 -0400 Message-ID: <3974920B.4EF3F46F@travel-net.com> Date: Tue, 18 Jul 2000 13:21:15 -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] MPAA v. 2600 - Day 1 References: <20000718152637.29979.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 OK. I finslly had time to read Kaplans decision on the move to recuse. What struck me was he said: "The court recognized that taking on cases both for and against Time Warner at the same time had been an accident" To me that takes the whole question of Garbus conflict right out and removes any possiblity of balancing two harms or two wrongs. He also went on to remind us of the standard: which is do it via professional bodies absent the real threat of a trial taint. So we get to the current request. Im not sure how things work in the US, but up here a judge doesnt have to think twice about taking judicial notice of the fact that he/she might have a conflict. If Kaplan should take notice of at least the apparent conflict (if not an actual one) he should have done something pre-trial, like at least seek advice on whether to take the case or recuse himself. Waiting till counsel brings it up and saying what amounts to "it was common knowledge so you should have brought it up earlier therefore Im assuming its tactical just like the other sides motion to get you off the case' smacks of at least faulty logic. I dont think the two situations can be equated since the judge has instant knowledge and is probably bound by his knowledge to think about it, whereas there is no presumption that defendants knew about the judge's conflict. You cant ask defense counsel to be omnipitent or assume facts not in evidence. Indeed were D. cousenl to bring up the conflict pre-disco they would have had no evidence, no? James, what is wrong with my logic? I have the feeling I am pleading apples and oranges yet I am sure theres something wrong with Kaplans decision on paper. -- 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 Jul 18 13:33:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15568 for dvd-discuss-outgoing; Tue, 18 Jul 2000 13:33:48 -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 NAA15565 for ; Tue, 18 Jul 2000 13:33:44 -0400 Received: from jy01 (user-2inighi.dialup.mindspring.com [165.121.66.50]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id NAA04730 for ; Tue, 18 Jul 2000 13:32:41 -0400 (EDT) Message-Id: <200007181732.NAA04730@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 13:28:43 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] MPAA v. 2600 - Day 1.1 In-Reply-To: <3974605D.E274334@mninter.net> References: <4.3.2.7.2.20000717233712.00b1eba0@127.0.0.1> Mime-Version: 1.0 Content-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 got in about an hour of face time in court today. The first witness was Frank Stevenson, of whom we heard on the last few minutes (Frank then left for icey Norway -- its 88 F in NYC). The second was Robert Schumann, whose portion of the time we heard was spent answering Leon Gold's direct examination on what we've read in Schumann's affidavits and deposition. He said his firm, CINEA is paid $325 /hr for his services to MPAA. We didn't hear it, but was told during Frank's examination there came a moment when he was asked, "do you know who authored DeCSS?" Frank paused for the longest, then said "one author is in this room." Proskauser's team bolted awake, froze, looked at each other, turned pale, swiveled to search the audience, saw no devil breathing flames. "Could you point that person out," Proskauer asked. Frank raised his hand to point and everyone in the courtroom fell to the floor leaving only you know who sitting alone, halo shining, his father beaming at his knees. Seems Proskauer didn't know Jon was in the audience. Jon was immediately asked to leave the room as a potential witness, so he remained with reporters who followed him out, spreading the gospel, the truth, the facts of the matter. I talked to reporters from Bloomberg and the New York Daily News, who said they came today in response to yesterday's coverage, and were trying to understand the mysterious acronyms richocheting around the room. Mosly, though, they gushed about the amazing teenager from Norway who has who got the IP mafia freaked and frothing as if Beezlebub is back on earth. And they couldn't be more delighted at young David sweetly demolishing the Giant with a single stone. BTW, they asked me, WTF are you, you look way too old for this crowd? I'm a 13-year-old, I confessed. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 13:46:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15863 for dvd-discuss-outgoing; Tue, 18 Jul 2000 13:46:15 -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 NAA15860 for ; Tue, 18 Jul 2000 13:46:13 -0400 Received: from jy01 (user-2inighi.dialup.mindspring.com [165.121.66.50]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id NAA15213 for ; Tue, 18 Jul 2000 13:45:17 -0400 (EDT) Message-Id: <200007181745.NAA15213@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 13:41:19 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop In-Reply-To: <200007181603.MAA17831@soggy-fibers.ai.mit.edu> References: <39747807.7CF268B1@mit.edu> <39747807.7CF268B1@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert Thau askwed: >Hmmm... are witnesses allowed to attend the testimony of another >witness? I thought that as a general rule, they weren't, but I could >easily be wrong (or misapplying rules from another jurisdiction). No. Yesterday, a call was made for all witnesses to leave the courtroom and a bunch did to wait in the lobby, the empty jury room, or the bar. Today, as noted just now, Jon Johansen was asked to vacate. Often its more enlightening to wait outside than hear what's droning inside -- a lot of stuff already documented in pre-trial docs that has to be repeated by direct examination for the trial record. The new stuff comes out during cross, and it's mighty fine movie material, even the heavy hamming by the pros and not so blind justice. Today, the young girl was not present. No mainstream press has reported on the mystery sub-teen girl. However, Judge Kaplan today introduced a Japanese "district judge" who is sitting in on the trial. Kaplan bowed to the man, amazingly. This is the person I took to be a teenager or college kid playing hooky, or a Sony VAIO peddler (hey, I got one of the 15" beauties and count sheeps sleepless with it). From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 14:08:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16733 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:08:08 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA16730 for ; Tue, 18 Jul 2000 14:08:01 -0400 Received: from ppp.anonymizer.com (c05-017.015.popsite.net [64.24.76.17]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA02169 for ; Tue, 18 Jul 2000 11:09:16 -0700 (PDT) Message-Id: <4.3.2.7.2.20000718105554.00b59b50@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 18 Jul 2000 11:06:48 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 In-Reply-To: <3974920B.4EF3F46F@travel-net.com> References: <20000718152637.29979.qmail@web515.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 01:21 PM 7/18/2000 -0400, Dan Steinberg wrote: >OK. I finslly had time to read Kaplans decision on the move to recuse. >What struck me was he said: >"The court recognized that taking on cases both for and against Time >Warner at the same time had been an accident" > >To me that takes the whole question of Garbus conflict right out and >removes any possiblity of balancing two harms or two wrongs. Agreed, but for a different reason. When the parties allegedly engage in arguable misconduct, a balancing can occur. If, for example, a Plaintiff engages in discovery abuse, that can be taken into account if the Plaintiff then claims that the Defendant is engaging in discovery abuses. But a judge's actual or apparent conflict cannot be balanced against that of a party's attorney. Without regard to whether Garbus had a conflict (and I think the decision there was correct), the question about Kaplan should be decided on its own merits. I'll give some more thoughts later on the rest of your post, but I gotta run. In the meantime, avid slashdot readers should watch for the next slashback, since Timothy accepted a short submission of mine linking to the Order as an update to CT's article yesterday. -------------------------------------------------------------------- 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 Tue Jul 18 14:10:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16815 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:10:18 -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 OAA16812 for ; Tue, 18 Jul 2000 14:10:14 -0400 Message-ID: <20000718180845.24061.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 18 Jul 2000 11:08:45 PDT Date: Tue, 18 Jul 2000 11:08:45 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Evidence that antitrust is an issue in the trial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I did a search for the word "antitrust" on the dvd-discuss mailing list archives. This returned 397 hits on 7/18/00 http://eon.law.harvard.edu/cgi-bin/htsearch?config=htdig&restrict=http%3A%2F%2Feon.law.harvard.edu%2Farchive%2Fdvd-discuss%2F&exclude=&method=and&format=builtin-short&words=antitrust At this time the message counter is at 4994. This indicates that roughly 8% of our discussion has concerned antitrust issues. More evidence is provided by the draft outline of our amicus briefs, which clearly include antitrust issues such as tying, misuse of copyright, and so on. Perhaps we should submit an amicus brief on the recusal issue!! __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 14:18:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17129 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:18:00 -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 OAA17126 for ; Tue, 18 Jul 2000 14:17:58 -0400 Received: from jy01 (user-2inighi.dialup.mindspring.com [165.121.66.50]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id OAA12672 for ; Tue, 18 Jul 2000 14:17:02 -0400 (EDT) Message-Id: <200007181817.OAA12672@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 14:13:05 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Where do we go from here? In-Reply-To: <39745B35.35BAB6DB@mit.edu> References: <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bear in mind that proof of irreparable harm by DeCSS remains an issue that has not been established -- not a single instance demonstrated by MPAA, so far. And that circumvention is not automatically a violation, since DMCA allows it for research purposes. What MPAA is trying to do, now in the trial, is to show that DeCSS was not invented for research purposes but only for the kind of circumvention prohibited by DMCA. 2600 is fighting against that by showing that DeCSS does indeed qualify as a research tool, that it is not uncommon for such conflicting views of a tool to arise, and that that is why attention to the First Amendment is crucial in this case to sort out what is permissable under DMCA. And, why MPAA is fighting so hard to keep 1A out of the case. Viewed with 1A application to breaking technology (pun) the case does not look bad for 2600. Not a few valuable research tools have been devised from creative "misuse" of inventions, and it is these the 1A is particularly aimed at, not only those which are "obviously" creative. In crypto, particularly, there are frequent discoveries which have been overlooked by the best of experts -- some of whom make a swell living denying that such cracks by nobodies are possible until they've had the vainglory beat out of them by the nobodies via public ridicule -- witness Shamos, witness Schumann. You tell me why inepts need big law firms and pr firms to overvalue their mutual reputations. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 14:20:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17219 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:20:12 -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 OAA17216 for ; Tue, 18 Jul 2000 14:20:11 -0400 Received: from travel-net.com (trj43.travel-net.com [207.176.160.43]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id NAA10391 for ; Tue, 18 Jul 2000 13:17:19 -0400 Message-ID: <39749F3F.930DBBA9@travel-net.com> Date: Tue, 18 Jul 2000 14:17:35 -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] Evidence that antitrust is an issue in the trial References: <20000718180845.24061.qmail@web513.mail.yahoo.com> 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 OAA17217 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu An amicus brief on the recusal issue? OK, I'll play along. Assuming, arguendo, that we write the brief. The question is: what is the best place to submit it to? Bryan Taylor wrote: > > I did a search for the word "antitrust" on the dvd-discuss mailing list > archives. This returned 397 hits on 7/18/00 > > http://eon.law.harvard.edu/cgi-bin/htsearch?config=htdig&restrict=http%3A%2F%2Feon.law.harvard.edu%2Farchive%2Fdvd-discuss%2F&exclude=&method=and&format=builtin-short&words=antitrust > > At this time the message counter is at 4994. This indicates that > roughly 8% of our discussion has concerned antitrust issues. > > More evidence is provided by the draft outline of our amicus briefs, > which clearly include antitrust issues such as tying, misuse of > copyright, and so on. > > Perhaps we should submit an amicus brief on the recusal issue!! > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.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 Jul 18 14:40:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18143 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:40:12 -0400 Received: from web2001.mail.yahoo.com (web2001.mail.yahoo.com [128.11.68.201]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id OAA18140 for ; Tue, 18 Jul 2000 14:40:08 -0400 Received: (qmail 13478 invoked by uid 60001); 18 Jul 2000 18:39:12 -0000 Message-ID: <20000718183912.13477.qmail@web2001.mail.yahoo.com> Received: from [204.31.213.104] by web2001.mail.yahoo.com; Tue, 18 Jul 2000 11:39:12 PDT Date: Tue, 18 Jul 2000 11:39:12 -0700 (PDT) From: Eddan Katz Subject: [dvd-discuss] Day 2 Morning Report 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 This morning's proceedings began with Frank Stevenson's testimony. Stevenson is a computer programmer from Norway, whose specialty is cryptography, and whose preferred operating system is Linux. In his testimony, Stevenson described how a community of programmers were working on developing a DVD player for Linux, so that "Linux will not be an inferior operating system to Windows." Much of what Stevenson seemed to want to say was not admitted into evidence since he was not on the stand as an expert. What he did get across was that DeCSS was developed in order to allow DVDs to be played on Linux, and not for the purposes of unauthorized duplication or piracy. The drama of his testimony came in cross-examination when he was asked if he had played a part in developing DeCSS. Though he did not, Stevenson replied after a painfully prolonged pause, : "One of the developers is here in this courtroom." The Proskauer lawyers, in complete shock, asked him to point the person out. Jon Johansen, celebrated as a hero this past weekend at the H2K conference, and whose giant portrait was carried by demonstrators outside the court house yesterday, was sitting quietly in the second row, right next to his father Per. After some discussion, Jon was then asked to leave the courtroom in the event that he would be placed on the stand as a witness later in the trial. See Stevenson's declaration at: http://www.eff.org/ip/Video/MPAA_DVD_cases/20000503_def_ny_linking_reply.html#Stevenson and DVD-CCA case declaration at http://www.eff.org/pub/Intellectual_property/Video/DVDCCA_case/20000107-pi-motion-stevensondec.html The morning's testimony then continued with Robert Schumann's testimony. Schumann is president of Cinea, a security systems company whose primary source of income this year will be Proskauer and the MPAA. Prior to his work at Cinea, Schumann was director of strategic technology, and chief architect of system design at DivX. (Incidentally, Judge Kaplan today decided that in order to reduce confusion, the compression program used on DeCSSed DVDs will be referred to as DIVX, while the pay-per-view movie rental technology will now be called Divex.) Schumann's testimony focused first on whether DeCSS was in fact a "Linux" application designed to play movies. His proof of the fact that it was not primarily for that purpose is that DeCSS itself is a Windows application. Further proof was provided by pointing to the fact that Johansen declared his preference for FreeBSD in LiVid discussion logs (of which he read only the sections provided to him by the MPAA). His testimony continued in discussion of his visits to 2600.com, from where he linked to DeCSS on a number of occasions, though he testified that he had never seen the entirety of the DeCSS source code at any of these locations. Judge Kaplan, who was otherwise in good humor today, got testy when Garbus asked Schumann a series of questions directed to prove the point that no single person has ever been identified using DeCSS for piracy or unauthorized duplication purposes. Judge Kaplan analogized the type of inquiry required to prove such a thing to asking the CEO of diaper company to identify who is wearing his pampers. Garbus replied that he did not think this analogy appropriate. The court broke for lunch recess shortly after Judge Kaplan read from 1201(a)(3) of the DMCA in response to a line of questioning in cross-examination illustrating that the weakness of CSS security was known to the studios since 1997. In the interpretation of the anti-circumvention provisions, "written by Congress, not me," Judge Kaplan said that the "effectiveness" of a security measure did not necessarily mean that it had to be good. -Eddan Katz EFF Intern P.S. This e-mail was mostly composed before reading John Young's rendition of how Johansen was pointed out. I prefer his version. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 14:48:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18357 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:48:28 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18354 for ; Tue, 18 Jul 2000 14:48:26 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PW49>; Tue, 18 Jul 2000 14:52:10 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E5E@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] MPAA v. 2600 - Day 1.1 Date: Tue, 18 Jul 2000 14:52:01 -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 Jon is playing with fire here. Since this is not a criminal matter, he only has very limited protection if called as a witness, for instance, he might very well face jail time if he doesn't disclose the names of the other authors. -----Original Message----- From: John Young [mailto:jya@pipeline.com] Sent: Tuesday, July 18, 2000 1:29 PM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA v. 2600 - Day 1.1 We didn't hear it, but was told during Frank's examination there came a moment when he was asked, "do you know who authored DeCSS?" Frank paused for the longest, then said "one author is in this room." From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 14:55:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18468 for dvd-discuss-outgoing; Tue, 18 Jul 2000 14:55:08 -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 OAA18465 for ; Tue, 18 Jul 2000 14:55:07 -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:2.21) with ESMTP id OAA14763 for ; Tue, 18 Jul 2000 14:54:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA19573; Tue, 18 Jul 2000 14:54:11 -0400 (EDT) Date: Tue, 18 Jul 2000 14:54:11 -0400 (EDT) Message-Id: <200007181854.OAA19573@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Day 2 Morning Report In-Reply-To: <20000718183912.13477.qmail@web2001.mail.yahoo.com> References: <20000718183912.13477.qmail@web2001.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eddan Katz writes: > The court broke for lunch recess shortly after Judge Kaplan read > from 1201(a)(3) of the DMCA in response to a line of questioning in > cross-examination illustrating that the weakness of CSS security > was known to the studios since 1997. In the interpretation of the > anti-circumvention provisions, "written by Congress, not me," Judge > Kaplan said that the "effectiveness" of a security measure did not > necessarily mean that it had to be good. He's right, of course. The fundamental problem with considering CSS to be "cryptography" has to do with the key-bolted-to-the-lock nature of the "cryptosystem". I do hope they get to this. The ineffectiveness shows that they didn't even care whether the "cryptography" was good or not, as it is incidentaly to the system's key purposes, but that means nothing by itself without the central point. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:00:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18615 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:00:01 -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 PAA18612 for ; Tue, 18 Jul 2000 15:00:00 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA10312 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Jul 2000 13:59:03 -0500 Date: Tue, 18 Jul 2000 13:59:02 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1.1 Message-ID: <20000718135902.A10298@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <611C0CE12596D311B466009027D5E7591E4E5E@c100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E5E@c100.clearway.com>; from Ray@clearway.com on Tue, Jul 18, 2000 at 02:52:01PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 18, 2000 at 02:52:01PM -0400, Leland Ray wrote: > > Jon is playing with fire here. Since this is not a > criminal matter, he only has very limited protection > if called as a witness, for instance, he might very > well face jail time if he doesn't disclose the names of > the other authors. He's stated before that he doesn't know their real names. From the Linuxworld interview: LinuxWorld: The other two people that you had worked with to make the player are remaining anonymous -- is that right? Jon Johansen: Yes, that is correct. LinuxWorld: Do you think they will try to find out who they are from the data on your computer? Jon Johansen: Yes, probably. They also asked what I knew about them. But I don't have the identity of any of them. I only had the nicks that they used on Internet Relay Chat. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:05:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18754 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:05:12 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18751 for ; Tue, 18 Jul 2000 15:05:11 -0400 Received: from 207-172-184-53.s53.tnt6.lnhva.md.dialup.rcn.com ([207.172.184.53]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13Ecf6-0004Rt-00 for dvd-discuss@eon.law.harvard.edu; Tue, 18 Jul 2000 15:04:13 -0400 Date: Tue, 18 Jul 2000 15:04:11 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] npr stories X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 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 On DivX: Internet Movie Pirates Gain Access to New Technology http://www.npr.org/ramfiles/me/20000718.me.07.ram On MPPA v Corley (day 1): Hollywood Vs. Hackers In Manhattan Court http://www.npr.org/ramfiles/me/20000717.me.05.ram Both are available from http://www.npr.org/news/tech/ Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:07:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18816 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:07:32 -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 PAA18813 for ; Tue, 18 Jul 2000 15:07:31 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRA4>; Tue, 18 Jul 2000 12:06:42 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D10@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 18 Jul 2000 12:06:36 -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 Which shows that it is player-manufacturer control, not access control. Thus admitting that CSS is -not- "effectively" a TPM in the 1201 sense of the term. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, July 18, 2000 9:41 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Richard Hartman writes: > > The only issue I can see is whether a TPM must be > > an access control device, or whether there are other > > types of TPMs. (I can think of one off the top of > > my head -- copy control -- but CSS doesn't do that > > job either) > > It must be an access control device to be covered under 1201(a); copy > control is 1201(b). However, note the following from David Carson of > the LOC and Time-Warner's Dean Marks at the Stanford LOC hearing (with > one editorial interpolation in [square brackets]): > > > 3 MR. CARSON: Well, if we get a chance, > 4 in a while. But I sort of would like to stick with > 5 what I was talking about with Mr. Marks. > 6 It strikes me that what we are > 7 describing is perhaps a copying control device in > 8 access control clothing. In other words, you've got > 9 a device that controls access to a work, but not in > 10 the way that, certainly before this rulemaking > 11 began, I thought we were talking about. We were > 12 talking about access control devices. > 13 In other words, I assumed -- naively, > 14 perhaps -- that a technological measure that > 15 controls access to a work, the purpose of that is to > 16 make sure that authorized users and only authorized > 17 users are getting access to the works. So if I paid > 18 the price to the copyright owner otherwise be able > 19 to use that work, then I'm entitled to use it. > 20 And if he somehow gets access to it by > 21 circumventing encryption or passwords, or whatever, > 22 then she's in trouble because she's not an > 23 authorized user. I'm not in trouble because I am. > 24 That's got nothing to do, as far as I can tell, with > 25 what you're talking about. > PAGE 246 > 1 What you're really talking about, I > 2 think, is an access control measure that is designed > 3 to channel someone towards a device which has copy > 4 controls on it. Is that a fair description, or am I > 5 misdescribing it? > > [Well, yes --- except that as you just got through saying, > it's *not* an access control measure as the term is properly > understood. But, let's watch Marks try to project some real > access control functionality into it, anyway:] > > 6 MR. MARKS: I think it's partially a > 7 fair description. I think it is also used -- the > 8 fact that the work is encrypted is used to try and > 9 guarantee that the user has legitimately -- has > 10 legitimate access to the work as well. I mean, I > 11 don't think it's completely devoid, the CSS system, > 12 of trying to ensure that those people that -- for > 13 example, would just simply duplicate the DVD disks - > 14 - you know, pirates who would duplicate the DVD > 15 disks. > 16 And if there were pirate players that > 17 were unlicensed, they wouldn't be able to play those > 18 disks because they were encrypted with CSS. That > 19 serves an access control function as well. > 20 MR. CARSON: But a duplicated -- > 21 MR. MARKS: A duplicated DVD disk is > 22 going to duplicate the CSS encryption. > 23 MR. CARSON: And can be played on any > 24 legitimate player. > PAGE 247 > 1 MR. MARKS: And can be played on any > 2 legitimate player, legitimate licensed CSS player. > 3 And not be played on non-licensed players. > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:08:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18852 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:08:17 -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 PAA18849 for ; Tue, 18 Jul 2000 15:08:15 -0400 Message-ID: <20000718190646.3215.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Tue, 18 Jul 2000 12:06:46 PDT Date: Tue, 18 Jul 2000 12:06:46 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Questions for Johansen 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 It appears that Jon Johansen may be a witness soon. This makes me wonder what questions he should answer on direct. It might be helpful for us to make a list for the defense. Here's a few I thought of: 1. Why is DeCSS.exe a windows application? 2. What is your relationship with Derek Fawcus? 3. Did you give the source code for DeCSS.exe to Fawcus? 4. Which version did you give him? 5. Did LiViD create any programs as a result of having DeCSS? 6. Why did you give the code to Derek Fawcus? 7. How did creating DeCSS advance the creation of a linux player? 8. Was DeCSS revised as a result? 9. How did creating DeCSS advance the creation of a FreeBSD player? 10. What language is DeCSS written in? 11. Does that language work in just windows? 12. What does it mean to "port" software from OS to another? 13. Why is porting done? 14. Are the descrambling parts of DeCSS "portable"? 15. Were you a member of LiViD when DeCSS was developed? 16. Were you in regular communication with LiViD? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:12:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18938 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:12:42 -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 PAA18935 for ; Tue, 18 Jul 2000 15:12:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRBC>; Tue, 18 Jul 2000 12:11:52 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D11@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Day 2 Morning Report Date: Tue, 18 Jul 2000 12:11:51 -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 > > > Eddan Katz writes: > > The court broke for lunch recess shortly after Judge Kaplan read > > from 1201(a)(3) of the DMCA in response to a line of questioning in > > cross-examination illustrating that the weakness of CSS security > > was known to the studios since 1997. In the interpretation of the > > anti-circumvention provisions, "written by Congress, not me," Judge > > Kaplan said that the "effectiveness" of a security measure did not > > necessarily mean that it had to be good. > No, but the "effectiveness" of a security measure, even in the 1201 sense of the word, depends upon that measure having been designed to perform that task. With CSS we are talking about -that- sense of the word. It is not that it does the job as a security measure well or poorly -- but that it can not do that job -at all-, as the system is currently being used. CSS -could- be a part of a real protection system ... but in the -current- system, it does not "effectively" provide any protection whatsoever from unauthorized access to the work it is supposed to be protecting. -- -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 Jul 18 15:15:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19111 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:15:33 -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 PAA19107 for ; Tue, 18 Jul 2000 15:15:31 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRBL>; Tue, 18 Jul 2000 12:14:43 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D12@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Shamos's testimony, sony Vaio laptop Date: Tue, 18 Jul 2000 12:14:41 -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 They should also request a showing of that 2nd generation VHS tape on the Vaio screen... -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Ole Craig [mailto:olc@cs.umass.edu] > Sent: Tuesday, July 18, 2000 8:14 AM > To: DVD discussion > Subject: [dvd-discuss] Shamos's testimony, sony Vaio laptop > > > > This has been bugging me. The Shamos'n'Burns Travelling Show > apparently demonstrated yesterday that there's not much difference > between a DVD and a DIVX version of the same movie -- on a laptop > screen? > > Duh! I have damn good eyesight, and on a 13" or 14" Vaio > screen I likely wouldn't be able to tell the difference between DVD > and 2nd-gen VHS. Defense should request the same demonstration, but > pipe the laptop's output through a 21" monitor, or (better yet) a > multimedia projector. I bet there'd be quite a bit of difference. > > (e.g. http://www.epson.com/mul_proj/projectors/pl710c/index.html) > > Ole > -- > Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; > SGI martyr * > CS Computing Facility, UMass * for > public key > > Thomas Penfield Jackson for President! > > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:15:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19123 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:15:57 -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 PAA19120 for ; Tue, 18 Jul 2000 15:15:56 -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:2.21) with ESMTP id PAA17635 for ; Tue, 18 Jul 2000 15:15:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA27120; Tue, 18 Jul 2000 15:15:00 -0400 (EDT) Date: Tue, 18 Jul 2000 15:15:00 -0400 (EDT) Message-Id: <200007181915.PAA27120@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D10@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D10@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Which shows that it is player-manufacturer control, > not access control. Thus admitting that CSS is -not- > "effectively" a TPM in the 1201 sense of the term. Ummm... yeah. As does the issuance of authority (i.e., licenses) to player manufacturers, and not individual viewers, the lack of any effective control of access to individual works, etc. I've got a list of these and similar arguments at http://www.ai.mit.edu/people/rst/dmca/auth/auth.html Perhaps I should toss this one in... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:18:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19333 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:18:58 -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 PAA19330 for ; Tue, 18 Jul 2000 15:18:57 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13EcsP-0007Cm-00; Tue, 18 Jul 2000 21:17:57 +0200 Received: from localhost by sites.inka.de with local id 13EcsR-0000Lu-00; Tue, 18 Jul 2000 21:17:59 +0200 Date: Tue, 18 Jul 2000 21:17:59 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop Message-ID: <20000718211758.A188@inka.de> References: <5A8391CA2D9ED311AFAA080009D982B10B1D12@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D12@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Jul 18, 2000 at 12:14:41PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 18, 2000 at 12:14:41PM -0700, Richard Hartman wrote: > They should also request a showing of that 2nd > generation VHS tape on the Vaio screen... That would require a video input. Does the Vaio have one? If not does any other device with a similar type of screen? Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:20:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19384 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:20:53 -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 PAA19381 for ; Tue, 18 Jul 2000 15:20:51 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRB6>; Tue, 18 Jul 2000 12:20:03 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D13@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 18 Jul 2000 12:20:02 -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 Definately. Include the transcript, summarize the logical conclusions that were not stated therein. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, July 18, 2000 12:15 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Richard Hartman writes: > > Which shows that it is player-manufacturer control, > > not access control. Thus admitting that CSS is -not- > > "effectively" a TPM in the 1201 sense of the term. > > Ummm... yeah. As does the issuance of authority (i.e., licenses) to > player manufacturers, and not individual viewers, the lack of any > effective control of access to individual works, etc. I've got a list > of these and similar arguments at > http://www.ai.mit.edu/people/rst/dmca/auth/auth.html Perhaps I should toss this one in... rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 15:37:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19582 for dvd-discuss-outgoing; Tue, 18 Jul 2000 15:37:57 -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 PAA19570 for ; Tue, 18 Jul 2000 15:37:49 -0400 Message-ID: <20000718193615.12288.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Tue, 18 Jul 2000 12:36:15 PDT Date: Tue, 18 Jul 2000 12:36:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Evidence that antitrust is an issue in the trial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Dan Steinberg wrote: > An amicus brief on the recusal issue? OK, I'll play along. Assuming, > arguendo, that we write the brief. The question is: what is the best > place to submit it to? I'd submit it to Kaplan. He'd probably refuse to take it. Whether or not he takes it, we hand out copies to the press at the trial. It would argue these points: (1) This is an issue of enormous public importance. Even a hint of possible bias is intolerable (2) Having a Plaintiff as former client compromises public confidence in his objectivity (3) He should have recused himself before taking the case (4) Defense motion on the antitrust DVD relationship is timely (5) Antitrust is a major issue in the trial: RE, tying, misuse of copyright, and the competing authorization models all touch on it (6) By failing to recuse himself, public confidence in the trial is shaken (7) Justice and fairness are more important than the trial schedule I'd keep it real short say 2-3 pages. I'd also open it up on Slashdot for public signitures. Let several hundred people sign it. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 16:24:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20069 for dvd-discuss-outgoing; Tue, 18 Jul 2000 16:24:30 -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 QAA20066 for ; Tue, 18 Jul 2000 16:24:27 -0400 Received: from travel-net.com (trj43.travel-net.com [207.176.160.43]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id PAA20685 for ; Tue, 18 Jul 2000 15:21:35 -0400 Message-ID: <3974BC72.22EFF754@travel-net.com> Date: Tue, 18 Jul 2000 16:22:10 -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] Evidence that antitrust is an issue in the trial References: <20000718193615.12288.qmail@web510.mail.yahoo.com> 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 QAA20067 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ummmmmmmmm thats what I was afraid you might say. Unfortunately the way I see it, D. motion had two parts the conflict-of-interest and the bias. And there was a clear procedural fumble on the bias aspect that alone was sufficient for Kaplan to deny that particular motion. Since Kaplan has refused (on both counts) what good would an amicus do even if he would accept it? How are we an interested party into what is going on in a judge's mind? we werent "there". We don't have direct knowledge or evidence of his bias or conflict. How are we even going to argue something remotely reasonable as to WHY he should take the brief in the first place? Remember what the first one said about who we are and why we are submitting? Are we going to suddenly change that? I don't think so. We would essentially be saying "your honor, you are wrong. you are biased and conflicted" We cannot in an amicus correct the procedural fumble. so what reason would Kaplan have for changing his mind? But what I was getting to was: what do you do when you ask a judge to recuse themself and they refuse?????? Thats where I think the defense team have to think about going. Unless they are prepared to immediately ask for a review of his refusal, then there is nothing for us to think about. And Im not convinced that there would be any utility in our submitting an amicus at that level either. It could (and probably would) be argued that an amicus there was merely one more piece of paper to delay the start of trial. But we are getting into tactical stuff that I am ready to admit I have little experience with. I have one colleage in SDNY who was in a position to question a judge's conflict and bias. From memory, he asked the judge to recuse themself and chose to shut up after 'cause he felt he had to continue to practice there.... Bryan Taylor wrote: > > Dan Steinberg wrote: > > An amicus brief on the recusal issue? OK, I'll play along. Assuming, > > arguendo, that we write the brief. The question is: what is the best > > place to submit it to? > > I'd submit it to Kaplan. He'd probably refuse to take it. Whether or > not he takes it, we hand out copies to the press at the trial. > > It would argue these points: > > (1) This is an issue of enormous public importance. Even a hint of > possible bias is intolerable > (2) Having a Plaintiff as former client compromises public confidence > in his objectivity > (3) He should have recused himself before taking the case > (4) Defense motion on the antitrust DVD relationship is timely > (5) Antitrust is a major issue in the trial: RE, tying, misuse of > copyright, and the competing authorization models all touch on it > (6) By failing to recuse himself, public confidence in the trial is > shaken > (7) Justice and fairness are more important than the trial schedule > > I'd keep it real short say 2-3 pages. I'd also open it up on Slashdot > for public signitures. Let several hundred people sign it. > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.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 Jul 18 16:30:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20369 for dvd-discuss-outgoing; Tue, 18 Jul 2000 16:30:24 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA20366 for ; Tue, 18 Jul 2000 16:30:23 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id NAA17814 for ; Tue, 18 Jul 2000 13:29:26 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA16253; Tue, 18 Jul 2000 13:27:41 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Date: 18 Jul 2000 13:26:35 -0700 Organization: A poorly-installed InterNetNews site Lines: 28 Distribution: isaac Message-ID: <8l2ehr$frs$1@blowfish.isaac.cs.berkeley.edu> References: <20000718152637.29979.qmail@web515.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: > The timeliness issue seemed really out of tune to me. It's almost like > Kaplan is saying "yeah, you caught me, but you didn't catch me it > time". Maybe Garbus did know about the Kaplan-PW-TW connection before > and decided not to risk offending the judge by bringing it up. I don't know. Kaplan noted one huge problem with accepting untimely complains about conflicts of interest: it lets you hold on to damaging information waiting to see if the judge rules your way or not, so you might only expose the damaging conflict of interest if the judge rules against you, and that's not justice. It seems to me that this observation would be pretty compelling, _except_ that -- as you say -- a better remedy against this situation seems to be for the judge to recuse himself in advance if there is any plausible perception of conflict. If the judge does recuse himself in advance, then there is no dilemma here between "you caught me, but not in time" vs. "you're holding back a conflict to gain power over me". This seems to suggest that judges ought to err on the side of recusing themselves rather than risking such an unseemly dilemma. I'm certainly pretty ignorant on the policy matters associated with treatment of conflict of interest, but I wish I understood better why standard practice doesn't have judges, as a matter of course, recuse themselves in advance if there is any plausible chance that they have a relationship which might be perceived as damaging either party. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 16:34:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20462 for dvd-discuss-outgoing; Tue, 18 Jul 2000 16:34:11 -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 QAA20459 for ; Tue, 18 Jul 2000 16:34:10 -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:2.21) with ESMTP id QAA27282 for ; Tue, 18 Jul 2000 16:33:16 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA25469; Tue, 18 Jul 2000 16:33:15 -0400 (EDT) Date: Tue, 18 Jul 2000 16:33:15 -0400 (EDT) Message-Id: <200007182033.QAA25469@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D13@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D13@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Definately. Include the transcript, summarize > the logical conclusions that were not stated > therein. Done; I also added a cute bit where Marks explicitly defines "authorized user" as anyone in physical possession of a DVD and a licensed player. This analysis now forms the bulk of the "controls access to a market, not to a work" section; http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION00064000000000000000 is the direct link. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 16:39:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20546 for dvd-discuss-outgoing; Tue, 18 Jul 2000 16:39:00 -0400 Received: from europe.std.com (europe-e.std.com [192.74.137.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA20543 for ; Tue, 18 Jul 2000 16:38:58 -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 QAA03372 for ; Tue, 18 Jul 2000 16:37:58 -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 QAA03820 for ; Tue, 18 Jul 2000 16:32:05 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200007181817.OAA12672@smtp6.mindspring.com> References: <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.com> Date: Tue, 18 Jul 2000 16:32:02 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Where do we go from here? 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 2:13 PM -0400 7/18/2000, John Young wrote: >Bear in mind that proof of irreparable harm by DeCSS >remains an issue that has not been established -- not >a single instance demonstrated by MPAA, so far. > >And that circumvention is not automatically a violation, >since DMCA allows it for research purposes. > ... >In crypto, particularly, there are frequent discoveries which >have been overlooked by the best of experts -- some of whom >make a swell living denying that such cracks by nobodies are >possible until they've had the vainglory beat out of them by the >nobodies via public ridicule -- witness Shamos, witness >Schumann. You tell me why inepts need big law firms and >pr firms to overvalue their mutual reputations. One of the central themes in modern, public cryptologic research is the need for strong cryptographic tools properly applied to achieve any real security. The results of research in this area are presented in two forms: academic papers and actual demonstrations of broken codes. The latter have generally proven much more effective in influencing actual practice than the former. This is not because the experts overlook anything, IMHO, rather it is because cryptographic experts have very limited influence on actual practice. The people who generally approve the design of information security systems are almost always from management or marketing backgrounds and have little or no feel for cryptography. Actual demonstrations of a code being broken are the only thing that gets these people's attention. Arnold Reinhold PS Can anyone tell me where the trail is being held? I plan to be in NYC for MacWorld and would like to stop by. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 16:44:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20726 for dvd-discuss-outgoing; Tue, 18 Jul 2000 16:44:08 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA20723 for ; Tue, 18 Jul 2000 16:44:07 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id NAA17873 for ; Tue, 18 Jul 2000 13:43:10 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id NAA16294; Tue, 18 Jul 2000 13:41:25 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Where do we go from here? Date: 18 Jul 2000 13:41:15 -0700 Organization: A poorly-installed InterNetNews site Lines: 43 Distribution: isaac Message-ID: <8l2fdb$ft5$1@blowfish.isaac.cs.berkeley.edu> References: <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: > In crypto, particularly, there are frequent discoveries which > have been overlooked by the best of experts [...] Yes, that's certainly true. It's not the common case, but it does happen. But, what I find even more persuasive is that, in crypto, the grand majority of reverse-engineering comes from outsiders, _not_ from cryptographers. Think of this like the relationship between a journalist and his source; the source (the reverse-engineer) is a source of information, the journalist (the cryptographer) evaluates that information and publishes his analysis if it is of public interest. When we consider analysis of proprietary systems, the same pattern happens over and over again: Someone, usually not a cryptographer, reverse-engineers the system and reveals the details for the first time; then, someone else, usually a cryptographer, analyzes the newly-revealed information and discovers a serious flaw. Cryptographers rarely do their own reverse-engineering; reverse engineers frequently do not do their own crypto. I've seen the pattern happen again and again in my own research. The GSM COMP128 cipher was first reverse-engineered and revealed by Marc Briceno (not a cryptographer); then Ian Goldberg and I (cryptographers) did some analysis work on his information, and found out serious flaws in GSM security. Then, the same thing happened with the GSM A5/2 cipher. Then, it happened again with the GSM A5/1 cipher. The same pattern happened with the American cellphone standards. After close to a decade of secrecy, the encryption algorithm was revealed by some anonymous party (apparently not a cryptographer; someone asking for analysis from the cryptographic community). Within a matter of months, I and other cryptographers had analyzed it found it was seriously flawed, and we published a paper on the results. The DVD CSS cipher is yet another example of this pattern. And, it is absolutely clear to me that if outsiders stop reverse-engineering proprietary systems and revealing their details for the cryptographic community to evaluate, the world will not hear as much about flaws in proprietary security systems. That would be a real shame. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:01:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21617 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:01:12 -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 RAA21614 for ; Tue, 18 Jul 2000 17:01:08 -0400 Message-ID: <20000718205940.23683.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 18 Jul 2000 13:59:40 PDT Date: Tue, 18 Jul 2000 13:59:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Evidence that antitrust is an issue in the trial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Dan Steinberg wrote: > Since Kaplan has refused (on both counts) what good would an amicus > do even if he would accept it? The point would be to call attention to the bias. Public perception is important. The MPAA has labelled us as pirates -- we need to hammer them as bullying corporatists who use their connections to advance their own rights at the expense of those of the public. I have no doubt that he would not accept the argument -- either by not accepting the brief or by accepting it and ignoring it. So what? The point is to stand up to an outrage. > How are we an interested party into what is going on in a > judge's mind? We are members of the "open source community". We are potential users of open source DVD players. We are tax payers and citizens who want to see our money go to a fair judicial process. More fundamentally, this is a case that determines the future of fair use, reverse engineering, and free speech. These are basic human rights that anyone has an interest in. The judge might reject these claims. I, for one, don't really care what he thinks anymore. I am not alone and this IS the problem. > We don't have direct knowledge or evidence of his bias or conflict. He admitted in his brief that his firm represented Time Warner on DVD antitrust issues while he was a partner there. It's shocking that he didn't step down on his own at the start or when called on it. He has decided for the defense that antitrust issues are not involved precisely because to admit otherwise would be to repudiate his firm's work. > We would essentially be saying "your honor, you are wrong. you are > biased and conflicted" We cannot in an amicus correct the procedural > fumble. so what reason would Kaplan have for changing his mind? Public pressure works for me. He should have a sense of duty to avoid the appearance of impropriety, per 28 USC 455 (a). By the way, what precisely are you refering to as the "procedural fumble"? Kaplan admited the antitrust discovery was timely. > But what I was getting to was: what do you do when you ask a judge to > recuse themself and they refuse?????? You call as much attention to it as possible and appeal quickly (assuming you have a case). __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:14:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA21835 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:14:42 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA21832 for ; Tue, 18 Jul 2000 17:14:41 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA07580 for ; Tue, 18 Jul 2000 16:13:46 -0500 (CDT) Message-ID: <3974C842.B1A4A8A2@uic.edu> Date: Tue, 18 Jul 2000 16:12:34 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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" writes: >Jim Taylor writes: >> Ironically, pirated discs work as well. Pirated Divx discs would also be >> billed to your account, while the pirate saved DVE the trouble and expense >> of replicating the disc. > Wow. I've been assuming (and perhaps I'm not the only one) that the > Divx central systems actually kept track of which players were > entitled to view which titles. Here's the scoop on how divx worked. o You buy a divx player, enter into a contract, and plug the player into your phone jack. Your player calls up a mainframe, authenticates itself through an encrypted channel, and the decoding function is turned "on", allowing you to watch any divx encrypted disc whatsoever. o Each divx disc has an individual serial number. So do the players. Every time you place a divx disc in your player, and press start, the serial number of the disc is stored in the player, along with the time of day. o Every so often, your player connects to a mainframe and uploads a list of which discs you watched, and what day and time you watched them on. You are then billed according to the rate scheme. It is important to understand that the rate scheme was completely unrelated to the control scheme. The control scheme was analagous to: Player: Hello, mainframe, I'm player 12345, and here is a list of the discs this player has played: disc 12345678 played on 1/1/2000 at 11:35pm disc 23456789 played on 1/2/2000 at 12:01pm Mainframe: Ok. Re-enable the decoder for another week. If you can't reach me after that, disable the decoder. The original rate scheme was as follows: The first 48 hours for any disc are free, because the first use fee is included in the physical media cost. After the first 48 hours, you are charged for additional viewing periods. You can pay a fee ($20.00 or so) to upgrade a disc to "silver", which simply means that you are not charged anymore for subsequent viewings of that disc. o The ONLY technological control the company had over you was the ability to COMPLETELY turn off the divx decoding capability in your setbox. This would occur if you cancelled your service, disconnected the phone cord for an extended period, preventing the setbox from uploading your viewing data to the mainframe, or violated any term of their onerous, one-sided, consumer-unfriendly contract. Divx took direct aim at the rental market. The main consumer advantage was supposed to be that purchasing a Divx disc was much cheaper then purchasing a DVD, and you didn't have to return the disc, so no late fees, ever. The scheme had a number of problems: 1) The price of the discs was set at around $5.00, at a time when intense competition had pushed the price of renting a VHS tape down to $1.00 or so. 2) Even at $5.00, the discs were loss leaders. The only way that Divx could make money was if people watched the same discs over and over again, These "re-viewing" periods were the real profit base for the scheme. These profits never materialized. People didn't re-view the discs. 3) The Divx discs were stripped of all of the things that make DVDs cool, like alternate soundtracks, directors commentaries, hidden games, etc, making the disc an intrinsically inferior product to a DVD. 4) The privacy issue. People didn't like their viewing habits uploaded to a computer. 5) If you paid almost as much as a DVD to upgrade a disc to "silver" for unlimited no-charge viewing on your player, then cancelled your service or had your service cancelled, you would lose access to those "silver" discs that you had paid all that money for. This was a HUGE issue to me. It essentially meant that once you bought into the Divx system, and upgraded discs to silver, you were locked in to the system, and could not discontinue your subscription with taking a huge penalty hit -- your entire divx library would be essentially electronically repossessed. There were other problems, but I think that the real reason that Divx failed boils down to the simple fact that people like owning copies of works. They like having a CD library with neat little rows of CDs with pretty cover art, CD label art, that they, well, OWN and can do with as they please. Divx constantly drove home the point that you didn't actually OWN anything. No matter how much you paid for Divx discs, you were still just renting them, and you got a bill every month for watching "your" discs. And the company could repossess your entire Divx collection, including any "silver" discs you had, if your contract was cancelled. If there is any lesson to be learned from Divx, it is that people like owning copies of works, and won't pay for copies of media that they don't subsequently own. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:30:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22373 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:30:48 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22370 for ; Tue, 18 Jul 2000 17:30:47 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA10472 for ; Tue, 18 Jul 2000 16:29:52 -0500 (CDT) Message-ID: <3974CC09.4A9CCBF6@uic.edu> Date: Tue, 18 Jul 2000 16:28:41 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case 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 > In other words, copy bits try to take away, by technological means, > legally protected rights. Therefore, I find them obnoxious. The fatal, underlying problem with copy protection is that when you apply copy protection, or any other form of technological USE control to a piece of software, that software becomes intrinsically less valuable then the "cracked", unprotected, uncontrolled version of the same software. By definition, you've taken away some of the value of your own product. This is the exact opposite of what you want if you're a software vendor. You want the store bought version of your software to be intrinsically more valuable then a pirated version, NOT the other way around. Most software vendors figured this out back in the Apple II days. Now it's the MPAA and RIAA's turn to learn the same market-driven lesson. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:32:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22456 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:32:49 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22453 for ; Tue, 18 Jul 2000 17:32:48 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id QAA31013 for ; Tue, 18 Jul 2000 16:35:03 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id <3P3KYRVX>; Tue, 18 Jul 2000 17:31:52 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616BE2@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Evidence that antitrust is an issue in the tria l Date: Tue, 18 Jul 2000 17:31:43 -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 Yes, we must expose this instance of horrific corruption. -----Original Message----- From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] --- Dan Steinberg wrote: > Since Kaplan has refused (on both counts) what good would an amicus > do even if he would accept it? The point would be to call attention to the bias. Public perception is important. The MPAA has labelled us as pirates -- we need to hammer . . . You call as much attention to it as possible and appeal quickly (assuming you have a case). From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:47:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22832 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:47:49 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22829 for ; Tue, 18 Jul 2000 17:47:48 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA12996 for ; Tue, 18 Jul 2000 16:46:53 -0500 (CDT) Message-ID: <3974D006.770B5E4E@uic.edu> Date: Tue, 18 Jul 2000 16:45:43 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 whole point of Divx was that point of sale was > not where the transfer of authority took place. Purchase > of the -keys- was. This is why the stolen Divx works on > your machine IF AND ONLY IF you purchase a key. No rights > or permissions adhere to the disc itself. The point of Divx was that the authority was blanket. Your player was either authorized to play back all Divx discs, or no Divx discs. There was no in-between. A stolen Divx disc would work on your machine as well as any other divx disc if you had a player with an account in good standing. They didn't care where you got the discs from. Of course, if you played a stolen divx disc, your player would upload the stolen serial number to the mainframe, and identify you. That was a side effect though. The control mechanism was that the player had to periodically contact the mainframe to upload your viewing history, and receive a new time period of blanket authorization, or it would completely disable Divx decoding. All or nothing. > No rights or permissions adhere to the disc itself. Correct, although they attempted to create the misleading impression that when you upgraded a disc to silver, you received permanent viewing rights to that disc, when in fact what you were purchasing was a modification to your billing contract for that specific disc on your specific player, changing the "re-viewing" charge to $0.00. However, if you were to cancel your Divx account, or the company were to discontinue operations (which is exactly what is happening) you would lose access to each and every Divx disc you owned, regardless of whether you paid to upgrade it to "unlimited viewing" status. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:49:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22924 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:49:50 -0400 Received: from smtp6.mindspring.com (smtp6.mindspring.com [207.69.200.110]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22918 for ; Tue, 18 Jul 2000 17:49:49 -0400 Received: from jy01 (user-2inighi.dialup.mindspring.com [165.121.66.50]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id RAA07580 for ; Tue, 18 Jul 2000 17:48:53 -0400 (EDT) Message-Id: <200007182148.RAA07580@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 17:44:46 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Tech Question In-Reply-To: <8l2ehr$frs$1@blowfish.isaac.cs.berkeley.edu> References: <20000718152637.29979.qmail@web515.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 Judge Kaplan has a laptop on his desk which appears to get realtime feed from the court reporter for the proceedings. He occasionally quotes from it. The court reporter, when asked to read back something, reads from the paper tape coming from a machine which has stenographic symbols on it, not text. (I could see this from the jury box where we were allowed to sit on Monday.) So there appears to be a program which either converts the court reporters input to text which Kaplan received or Kaplan has a system in the courtroom which converts voice to text. The court reporters are changed every hour our so, and each takes away a floppy which I assume is a digital file of the proceedings that is taken somewhere to be converted to hardcopy text for distribution to the parties for a robust fee. It appears that Kaplan gets the proceedings immediately in digital form but does not share that with the parties. Now, my tech question is, is there a device by which I can snarf what's on Kaplan's laptop in order to produce an immediate transcript for public consumption. It would need to work from about 100 feet away, say on a balcony from a building which faces the courtroom. Or maybe from a public street with a directional receiver -- that would be 12 stories down or about 150 feet. Assume prohibitions on intercept of electronic communications are not applicable, as with the FBI's Carnivore. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:49:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA22949 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:49:55 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA22946 for ; Tue, 18 Jul 2000 17:49:54 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA13293 for ; Tue, 18 Jul 2000 16:49:00 -0500 (CDT) Message-ID: <3974D085.817C2C7E@uic.edu> Date: Tue, 18 Jul 2000 16:47:49 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] dvd-discuss] Right, Act, and Means to Access - more on Authority Models 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 writes: > (3) The Plaintiff's "for home viewing only" copyright notice > abandoned any attempt to provide nuanced right of access > criterion. All home viewing access is allowed. Devil's advocate: The real purpose of CSS is to encapsulate a work in a monolithic, impenetrable shell, that, in conjunction with a DVD player, allows viewing and nothing else. The only facility provided by DeCSS that is unavailable in any other form is the ability to pierce this monolithic shell, and directly manipulate the data on the disc ... ... which is not "viewing access" From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 17:58:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23152 for dvd-discuss-outgoing; Tue, 18 Jul 2000 17:58:55 -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 RAA23149 for ; Tue, 18 Jul 2000 17:58:54 -0400 Message-ID: <20000718215729.5537.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 18 Jul 2000 14:57:29 PDT Date: Tue, 18 Jul 2000 14:57:29 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Standard for Recusal 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 looked up 2nd Ciruit cases dealing with recusal. The books are full of denials of recusal that were upheld, although most of these appeals come from prisoners and are "one among many" frivolous claims. The standard for recusal under 28 USC 455 is: "Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Or phrased differently, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal?" United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992) Note that the standard requires only that "the trial judge's impartiality could reasonably be questioned", not that they must be proven. It is a "significan doubt" question. The facts are simple: Kaplan's firm, while he was a partner, represented Time Warner in matters of DVD antitrust. I found a citations where 455(b)(2) claims might have been accepted: Preston v. United States , 923 F.2d 731 (9th Cir. 1991) http://caselaw.findlaw.com/scripts/getcase.pl?court=9th&f=2&invol=731&vol=923&exact=1 Here's another such cite, sans link: (if you can get it, please do) In re Rodgers, 537 F.2d 1196 (4th Cir. 1976) __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:02:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23263 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:02:10 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA23260 for ; Tue, 18 Jul 2000 18:02:08 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id RAA31684 for ; Tue, 18 Jul 2000 17:04:24 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id <3P3KYR6S>; Tue, 18 Jul 2000 18:01:13 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616BE3@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Streambox case Date: Tue, 18 Jul 2000 18:01:06 -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 So, what if we demonstrate the following: On a laptop, we collect all files related to MS-Word, and compress them into one zip file. Then we go to a chat room where there is another user who has similarly created a zip file for MS-Excel. Now, we make some small talk where one of them mentions that he will use Word for word processing and then they swap the files that takes a few minutes. Next the user in the court room brings up MS-Excel and types in a simple formula to demonstrate it works. The implications would be that people could use Napster like sites on unversity campuses to conceivably trade millions of copies of MS software (although I wonder why they might). Now, obviously this doesn't happen because MS software is so bad that nobody wants to trade it. But when good software is available for charge (and not free the way it is today), then will it be illegal to discuss or link to the techniques used to break software locks? Just my cent's worth. Of course, a corollary is that if they make movies that stop running for no reason, then people might lose the incentive to trade them, but instead buy them at significant price from the local store.. -----Original Message----- From: John Schulien [mailto:jms@uic.edu] Sent: Tuesday, July 18, 2000 4:29 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case > In other words, copy bits try to take away, by technological means, > legally protected rights. Therefore, I find them obnoxious. The fatal, underlying problem with copy protection is that when you apply copy protection, or any other form of technological USE control to a piece of software, that software becomes intrinsically less valuable then the "cracked", unprotected, uncontrolled version of the same software. By definition, you've taken away some of the value of your own product. This is the exact opposite of what you want if you're a software vendor. You want the store bought version of your software to be intrinsically more valuable then a pirated version, NOT the other way around. Most software vendors figured this out back in the Apple II days. Now it's the MPAA and RIAA's turn to learn the same market-driven lesson. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:06:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23383 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:06:30 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA23380 for ; Tue, 18 Jul 2000 18:06:29 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id RAA31826 for ; Tue, 18 Jul 2000 17:08:45 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id <3P3KYR7X>; Tue, 18 Jul 2000 18:05:34 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616BE4@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Tech Question Date: Tue, 18 Jul 2000 18:05:25 -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 way to go! :-) While on that might as well find a way to make messages appear on his screen that tell him exactly what people think of the recusal! Assuming, of course, that no regulations are violated. -----Original Message----- From: John Young [mailto:jya@pipeline.com] Sent: Tuesday, July 18, 2000 4:45 PM Judge Kaplan has a laptop on his desk which appears to get realtime feed from the court reporter for the proceedings. He occasionally quotes from it. . . . Now, my tech question is, is there a device by which I can snarf what's on Kaplan's laptop in order to produce an . . . Assume prohibitions on intercept of electronic communications are not applicable, as with the FBI's Carnivore. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:20:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA23908 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:20:28 -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 SAA23905 for ; Tue, 18 Jul 2000 18:20:25 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id SAA07024 for ; Tue, 18 Jul 2000 18:19:00 -0400 Date: Tue, 18 Jul 2000 18:19:00 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Tech Question In-Reply-To: <200007182148.RAA07580@smtp6.mindspring.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 18 Jul 2000, John Young wrote: > Now, my tech question is, is there a device by which I > can snarf what's on Kaplan's laptop in order to produce an > immediate transcript for public consumption. It would need to > work from about 100 feet away, say on a balcony from a > building which faces the courtroom. Or maybe from a public > street with a directional receiver -- that would be 12 stories > down or about 150 feet. Technically, yes, realistically, no. What you want is known as Tempest - it picks up on the RF signals generated by the display (and there are anecdotes of TVs picking up laptops - LCD screens aren't exempt) and reconstructs them. There are a number of pages about it on the net. However, it would probably be somewhat difficult to put together, though it's believed by some that the military and the various intelligence agencies (CIA, NSA, NRO, etc.) have receivers that could do what you want. Interference by other signals in the area, as well as the construction of the buildings (which might serve to block the signal) are likely to limit the effectiveness of a Tempest reciever. > Assume prohibitions on intercept of electronic communications > are not applicable, as with the FBI's Carnivore. Well that's the trick, isn't it? Personally, I wouldn't want to be involved in looking at Kaplan's laptop screen, or anyone else's for that matter. Carnivore is a totally different beast anyway though. Ironically enough, 2600 would probably be interested in printing details of such a device ;) From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:43:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24273 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:43:55 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24270 for ; Tue, 18 Jul 2000 18:43:53 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id PAA18425 for ; Tue, 18 Jul 2000 15:42:57 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id PAA16603; Tue, 18 Jul 2000 15:41:11 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] dvd-discuss] Right, Act, and Means to Access - more on Authority Models Date: 18 Jul 2000 15:40:01 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8l2mc1$g6q$1@blowfish.isaac.cs.berkeley.edu> References: <3974D085.817C2C7E@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien wrote: > Devil's advocate: > > The real purpose of CSS is to encapsulate a work in a > monolithic, impenetrable shell, that, in conjunction with a DVD > player, allows viewing and nothing else. That's a good theory, except that (some of) the designers of CSS specifically said it's not so! They explicitly said that it is not impenetrable, nor was it designed to be. They explicitly said that it is only intended to "keep honest people honest", not to stop mass piracy. They explicitly said that one of the goals of CSS was to force manufacturers to accept their licensings terms (manufacturer control, aka market control). I can go and dig up quotes and citations if you like, but I've posted on this point before. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:54:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24406 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:54:00 -0400 Received: from eperke.themail.com (root@eperke.themail.com [216.64.18.11]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24403 for ; Tue, 18 Jul 2000 18:53:58 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.25]) by eperke.themail.com (8.9.3/8.9.3) with SMTP id SAA83683 for ; Tue, 18 Jul 2000 18:56:05 -0500 (EST) (envelope-from mw@themail.com) Date: Tue, 18 Jul 2000 18:56:05 -0500 (EST) Message-Id: <200007182356.SAA83683@eperke.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] testing123 X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.210.246.10 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_84_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_84_Boundary___ Content-type: text/plain This is a test. I sent two posts yesterday. One about John Gilmore, one a mail from Jim Gleason NY Linux User Group President on how Great Garbus did. I also wanted to know if Declan or anyone got any photos of the protesters.... but I did not even receive my mail back and don't see it on the archive... -marcia __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_84_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 18:56:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA24494 for dvd-discuss-outgoing; Tue, 18 Jul 2000 18:56:54 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA24491 for ; Tue, 18 Jul 2000 18:56:53 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id RAA19912 for ; Tue, 18 Jul 2000 17:55:58 -0500 (CDT) Message-ID: <3974E038.B189C8F9@uic.edu> Date: Tue, 18 Jul 2000 17:54:48 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" 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 > there are over 70 brands of DVD players > available, dozens of software and hardware > DVD decoder/players for Windows, > DVD playback built into Mac OS, Sony > Playstation II, Xbox, Nuon, iDVD, etc. > Where's the harmed market? The harmed market is for DVD content manipulation tools. There are dozens of programs that allow you to edit/modify/play with audio content ripped (or "sampled") from a CD, and so long as you do so strictly for your own enjoyment, such manipulation is probably fair use. However, there are absolutely no programs or hardware that allows you to edit/modify/play with video content ripped from a DVD, because of CSS and the CSS license which prohibits the creation of such hardware/software. This has probably stifled the market for amateur video manipulation/editing software. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:03:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24620 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:03:36 -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 TAA24617 for ; Tue, 18 Jul 2000 19:03:35 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRPF>; Tue, 18 Jul 2000 16:02:50 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D14@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 18 Jul 2000 16:02:43 -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 would like to see it stated, explicitly, that by Mr. Marks own testimony CSS can not be considered to be "in effect" a technological protection measure for controlling access to the work. It appears to only be the CSS licensing terms (contractual, not technological in nature) with which control is being asserted. Or would that detract from where you went w/ the congressional segment? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, July 18, 2000 1:33 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Richard Hartman writes: > > Definately. Include the transcript, summarize > > the logical conclusions that were not stated > > therein. > > Done; I also added a cute bit where Marks explicitly defines > "authorized user" as anyone in physical possession of a DVD and a > licensed player. > > This analysis now forms the bulk of the "controls access to a market, > not to a work" section; > http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION0006400000000000 0000 is the direct link. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:05:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24677 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:05:42 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA24674 for ; Tue, 18 Jul 2000 19:05:41 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6IN5c820935; Tue, 18 Jul 2000 19:05:38 -0400 Date: Tue, 18 Jul 2000 19:05:38 -0400 Message-Id: <200007182305.e6IN5c820935@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f Content-Type: text/plain Content-Disposition: inline Mime-Version: 1.0 X-Mailer: MIME-tools 4.103 (Entity 4.115) From: Rares Marian To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Tech Question Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young wrote: >Judge Kaplan has a laptop on his desk which appears to >get realtime feed from the court reporter for the proceedings. >He occasionally quotes from it. > >The court reporter, when asked to read back something, >reads from the paper tape coming from a machine which >has stenographic symbols on it, not text. (I could see this >from the jury box where we were allowed to sit on Monday.) >So there appears to be a program which either converts >the court reporters input to text which Kaplan received or >Kaplan has a system in the courtroom which converts voice >to text. > >The court reporters are changed every hour our so, and each >takes away a floppy which I assume is a digital file of the >proceedings that is taken somewhere to be converted to >hardcopy text for distribution to the parties for a robust fee. >It appears that Kaplan gets the proceedings immediately in >digital form but does not share that with the parties. > >Now, my tech question is, is there a device by which I >can snarf what's on Kaplan's laptop in order to produce an >immediate transcript for public consumption. It would need to >work from about 100 feet away, say on a balcony from a >building which faces the courtroom. Or maybe from a public >street with a directional receiver -- that would be 12 stories >down or about 150 feet. > >Assume prohibitions on intercept of electronic communications >are not applicable, as with the FBI's Carnivore. Is it invasion of privacy, contempt of court, disrespect for court proceedings? I don't know so I ask. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:05:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24685 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:05:56 -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 TAA24682 for ; Tue, 18 Jul 2000 19:05:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRPJ>; Tue, 18 Jul 2000 16:05:10 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D15@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] dvd-discuss] Right, Act, and Means to Access - more on Authority Models Date: Tue, 18 Jul 2000 16:05:03 -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 DeCSS can be used to provide "viewing access". It can -also- be used for other purposes. But it is the legitimate application that is at issue here. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: John Schulien [mailto:jms@uic.edu] > Sent: Tuesday, July 18, 2000 2:48 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] dvd-discuss] Right, Act, and Means to Access - > more on Authority Models > > > Bryan Taylor writes: > > > (3) The Plaintiff's "for home viewing only" copyright notice > > abandoned any attempt to provide nuanced right of access > > criterion. All home viewing access is allowed. > > Devil's advocate: > > The real purpose of CSS is to encapsulate a work in a > monolithic, impenetrable shell, that, in conjunction with a DVD > player, allows viewing and nothing else. > > The only facility provided by DeCSS that is unavailable in any > other form is the ability to pierce this monolithic shell, and > directly manipulate the data on the disc ... > > ... which is not "viewing access" > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:09:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24798 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:09:53 -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 TAA24794 for ; Tue, 18 Jul 2000 19:09:52 -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:2.21) with ESMTP id TAA14214 for ; Tue, 18 Jul 2000 19:08:58 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA20060; Tue, 18 Jul 2000 19:08:57 -0400 (EDT) Date: Tue, 18 Jul 2000 19:08:57 -0400 (EDT) Message-Id: <200007182308.TAA20060@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Streambox case In-Reply-To: <383558CE36E2D311AC790004AC33FF67616BE3@OZ> References: <383558CE36E2D311AC790004AC33FF67616BE3@OZ> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Anjul Srivastava writes: > The implications would be that people could use Napster like sites on > unversity campuses to conceivably trade millions of copies of MS software > (although I wonder why they might). > > Now, obviously this doesn't happen because MS software is so bad that nobody > wants to trade it. But when good software is available for charge (and not > free the way it is today), then will it be illegal to discuss or link to the > techniques used to break software locks? Except that it does happen --- the term is "warez sites". IIRC, most of the software traded is games and not office software, but anything and everything does show up. (And this sort of activity predates Napster by literally years --- in the typical case, some kid discovers a badly configured anonymous ftp server, which allows him to anonymously upload his files and download them back; he then announces his find on IRC, after which his friends descend on the server in their tens of thousands, swamping the server until its administrators pull the plug. So, typical current well-run anonymous ftp servers allow uploads, if at all, then into a specially set aside "incoming" directory which does not allow downloads; with a setup like this, uploads are possible, but files cannot be downloaded until a site administrator has intervened to make the file available). rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:19:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24930 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:19:03 -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 TAA24927 for ; Tue, 18 Jul 2000 19:19:02 -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:2.21) with ESMTP id TAA15068 for ; Tue, 18 Jul 2000 19:18:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA23424; Tue, 18 Jul 2000 19:18:07 -0400 (EDT) Date: Tue, 18 Jul 2000 19:18:07 -0400 (EDT) Message-Id: <200007182318.TAA23424@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] dvd-discuss] Right, Act, and Means to Access - more on Authority Models In-Reply-To: <3974D085.817C2C7E@uic.edu> References: <3974D085.817C2C7E@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > The real purpose of CSS is to encapsulate a work in a > monolithic, impenetrable shell, that, in conjunction with a DVD > player, allows viewing and nothing else. Two corrections: 1) The shell is not impenetrable, nor even particularly hard to crack --- just good enough to meet what its makers thought was the statutory burden of being an access control (though that's a somewhat confused concept; even Kaplan knows difficulty has nothing to do with it). 2) It's not that allows "viewing and nothing else"; rather, it allows viewing *subject to conditions imposed by the MPAA*; these do include copy controls, but also region coding now, and who knows what else in the future. David Wagner says that their techies aren't shy about this. Neither are their lawyers --- Dean Marks, in particular, is fairly clear about the purposes of CSS in the LOC hearing testimony which I've already posted. If you missed that the first time, it is, once again, at: http://www.ai.mit.edu/people/rst/dmca/auth/auth.html#SECTION00064000000000000000 rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:20:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA24980 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:20:22 -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 TAA24977 for ; Tue, 18 Jul 2000 19:20:21 -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:2.21) with ESMTP id TAA15171 for ; Tue, 18 Jul 2000 19:19:27 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA23907; Tue, 18 Jul 2000 19:19:26 -0400 (EDT) Date: Tue, 18 Jul 2000 19:19:26 -0400 (EDT) Message-Id: <200007182319.TAA23907@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <3974E038.B189C8F9@uic.edu> References: <3974E038.B189C8F9@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > The harmed market is for DVD content > manipulation tools. There are dozens of > programs that allow you to edit/modify/play > with audio content ripped (or "sampled") from > a CD, and so long as you do so strictly for > your own enjoyment, such manipulation is > probably fair use. Also, DVD players without region control (which is neither an access control nor a copy control) --- note that there is a substantial market for these in Europe. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:23:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25074 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:23:13 -0400 Received: from mail.rdc2.occa.home.com (imail@ha1.rdc2.occa.home.com [24.2.8.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA25071 for ; Tue, 18 Jul 2000 19:23:12 -0400 Received: from [192.168.1.100] ([24.13.176.232]) by mail.rdc2.occa.home.com (InterMail vM.4.01.03.00 201-229-121) with ESMTP id <20000718232217.NLRZ24297.mail.rdc2.occa.home.com@[192.168.1.100]> for ; Tue, 18 Jul 2000 16:22:17 -0700 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Tue, 18 Jul 2000 16:22:19 -0700 Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop From: Danny Silverman To: Message-ID: In-Reply-To: <20000718211758.A188@inka.de> Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Geez! Get a movie reviewer to testify about how great their DVD system is and how crappy Divx is when outputted from a computer into the same Dolby 5.1 digital surround sound system and 50" TV. Piece of cake. Need to borrow my system? \\|// (o o) ------------------------------oOOo-(_)-oOOo---------------------------- We were given two ears and one mouth for a reason - so that we would talk less and listen more. ----------------------------------------------------------------------- Danny Silverman | webmaster@mindwire.org Webmaster, EduDyne Foundation | http://www.mindwire.org ----------------------------------------------------------------------- > From: Sham Gardner > Reply-To: dvd-discuss@eon.law.harvard.edu > Date: Tue, 18 Jul 2000 21:17:59 +0200 > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Shamos's testimony, sony Vaio laptop > > On Tue, Jul 18, 2000 at 12:14:41PM -0700, Richard Hartman wrote: >> They should also request a showing of that 2nd >> generation VHS tape on the Vaio screen... > > That would require a video input. Does the Vaio have one? If not does any > other device with a similar type of screen? > > Sham > > -- > Constantly updated links to coverage of the New York case commencing > on July 17th 2000: > http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:25:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25124 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:25:31 -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 TAA25121 for ; Tue, 18 Jul 2000 19:25:31 -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:2.21) with ESMTP id TAA15716 for ; Tue, 18 Jul 2000 19:24:37 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA25759; Tue, 18 Jul 2000 19:24:36 -0400 (EDT) Date: Tue, 18 Jul 2000 19:24:36 -0400 (EDT) Message-Id: <200007182324.TAA25759@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D14@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D14@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 would like to see it stated, explicitly, that by > Mr. Marks own testimony CSS can not be considered > to be "in effect" a technological protection measure > for controlling access to the work. It appears to > only be the CSS licensing terms (contractual, not > technological in nature) with which control is > being asserted. I'm not sure what you're asking for. In his "authorized user" remarks, he does say, in effect, that the point of the work is not to keep playback to a particular set of authorized individuals --- *anyone* with a DVD and a licensed player is, ipso facto, authorized. What he does say however, explicitly and repeatedly, is that it is a technological protection measure that restricts the *means* of access to works to authorized players; my discussion quotes him as saying that at least twice. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:44:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25579 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:44:37 -0400 Received: from rasputin.xilix.com (root@rasputin.xilix.com [195.139.104.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA25563 for ; Tue, 18 Jul 2000 19:44:35 -0400 Received: from trustix.com (singsing.trustix.com [195.139.104.158]) by rasputin.xilix.com (8.9.3/8.9.3) with ESMTP id BAA18436 for ; Wed, 19 Jul 2000 01:40:03 +0200 Message-ID: <3974EBB4.B3693C64@trustix.com> Date: Wed, 19 Jul 2000 01:43:48 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.4.0-test4 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Streambox case References: <3974CC09.4A9CCBF6@uic.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 > This is the exact opposite of what you want if you're a > software vendor. You want the store bought version of your > software to be intrinsically more valuable then a pirated > version, NOT the other way around. > > Most software vendors figured this out back in the Apple II > days. Now it's the MPAA and RIAA's turn to learn the > same market-driven lesson. This happened a lot on the Amiga also. Most games had some sort of copy protection that did not allow you to make backup copies or install the game on your harddisk. The interesting point is that law-abiding consumers would buy the game and then hunt down the crack - that is, law- abiding consumers actually benefited on the existence of the game-cracking underground, and thus saw no incentive in helping the manufacturers to fight it. We see the same today, for example with cracked DVD firmware that removes region restrictions on RPC2 drives. -- LarsG. These are my opinions, which may or may not be shared by my employer. Code that cracks a protection device is criminal under the DMCA even if the use of the copyrighted material that the code enables would be fair use. - Lawrence Lessig, Berkman Professor of Law, Harward Law School. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 19:47:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA25819 for dvd-discuss-outgoing; Tue, 18 Jul 2000 19:47:45 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA25816 for ; Tue, 18 Jul 2000 19:47:41 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id SAA08240 for ; Tue, 18 Jul 2000 18:46:27 -0500 Message-ID: <3974EB73.C81A17A8@mninter.net> Date: Tue, 18 Jul 2000 18:42:43 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Tech Question References: <20000718152637.29979.qmail@web515.mail.yahoo.com> <200007182148.RAA07580@smtp6.mindspring.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 John Young wrote: > > Judge Kaplan has a laptop on his desk which appears to > get realtime feed from the court reporter for the proceedings. > He occasionally quotes from it. Well, is it wireless or wired? If it is wireless, you might try to get a hold of a wireless NIC and see what's readily available. Then you might see if you can put that NIC into promiscuous mode and catch all the data and log it (don't know if this is possible with wireless NICs; it may be technologically impossible or not an option with such devices, intentionally, for security purposes). If it is wired, you can run your own wire or install a camera, both would probably be hampered by the courthouse's TPM--police with guns. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:05:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26407 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:05:59 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA26404 for ; Tue, 18 Jul 2000 20:05:57 -0400 Received: from ppp.anonymizer.com (c02-190.015.popsite.net [64.24.73.190]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA04483 for ; Tue, 18 Jul 2000 17:07:10 -0700 (PDT) Message-Id: <4.3.2.7.2.20000718170443.00b58760@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 18 Jul 2000 17:06:08 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Tech Question In-Reply-To: <200007182148.RAA07580@smtp6.mindspring.com> References: <8l2ehr$frs$1@blowfish.isaac.cs.berkeley.edu> <20000718152637.29979.qmail@web515.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 05:44 PM 7/18/2000 -0400, John Young wrote: >Judge Kaplan has a laptop on his desk which appears to >get realtime feed from the court reporter for the proceedings. >He occasionally quotes from it. > >The court reporter, when asked to read back something, >reads from the paper tape coming from a machine which >has stenographic symbols on it, not text. (I could see this >from the jury box where we were allowed to sit on Monday.) >So there appears to be a program which either converts >the court reporters input to text which Kaplan received or >Kaplan has a system in the courtroom which converts voice >to text. Odds are it is LiveNote, www.livenote.com -------------------------------------------------------------------- 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 Tue Jul 18 20:12:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26531 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:12:27 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA26528 for ; Tue, 18 Jul 2000 20:12:26 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id TAA23972 for ; Tue, 18 Jul 2000 19:11:32 -0500 (CDT) Message-ID: <3974F1EF.A5BC7F6E@uic.edu> Date: Tue, 18 Jul 2000 19:10:23 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Craig Dep: Non-MP3 online music trading, etree.org Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In the Craig deposition, Mr. Hart asks Mr Craig: 1 Q. (*) Is it your belief the people who are using 2 Napster are deterred from using it because it 3 involves lossy compression? and after a lot of wrangling, Mr. Craig answers: 16 A. I would say that that question leaves out the 17 fact that people who don't want to use MP3s are 18 already not use being MP3s and therefore are not 19 using Napster. So the people using Napster are 20 obviously not deterred because they're not the 21 ones who decided MP3s are not good enough. 22 Q. Do you know how many people that comprises? 23 A. I have no idea. 24 Q. In the millions? ... 6 A. I do not know. I thought that the defense should know that there is an organized group of internet music traders who specifically spurn MP3 for this exact reason, and who do NOT fit the "pirate" image that the plaintiffs are trying to portray music traders as. Their web site can be found at etree.org. Some quotes from their "who are we?" page: > The etree.org music community was created in the > summer of 1998 for the online trading of live > jamband CD-Rs. We do not trade CD-R's via mail, > but by downloading compressed audio files, then > extracting these files and burning them onto CD-R. ... > Etree.org does not host or distribute MP3 files! While > MP3 has a good sound for such a small file size, it > is a lossy compression scheme. This means that > when music is converted into the MP3 format, a > certain amount of data is lost and cannot ever be > recovered. This data loss can sometimes result as > a 'swooshing' type sound in the music. For this > reason, you should never make an audio CD from > MP3 files. Etree.org has found that as CD-R's are > traded, MP3-sourced discs are often mislabeled and > passed along without any mention of their MP3 lineage. Far from being a "warez" or "pirate" site, etree members are scrupulously honest and understand that what they do is a privilege granted to them by the bands whose music they trade. From their "legal" link ... > Etree.org is a community of music fans that freely > trade and distribute the music of bands > that allow the audio taping of their live performances. > As a community, etree.org condemns anyone > that sells or attempts to sell the music available via > etree.org. ... > Etree.org maintains a zero-tolerance policy towards > any persons selling music distributed by etree.org > or the selling of any original copyrighted CD jewel > case artwork that is made available on the etree.org > website or associated file (FTP) servers. ... > The etree.org community maintains a steady vigil > against people that try to profit from the selling of > discs by: > o Closely monitoring online auction houses > (eBay[tm], Yahoo!® Auctions and Amazon.com > Auctions). > o Blocking the IP address of known offenders from > etree.org web and FTP servers. > o Removing and banning known offenders > from all etree.org mailing lists. If the defense feels the need to identify specific instances of non-MP3 online music trading, conducted by people who are above reproach, etree.org is the place to look. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:14:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26588 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:14:38 -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 UAA26585 for ; Tue, 18 Jul 2000 20:14:37 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CRT5>; Tue, 18 Jul 2000 17:13:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D17@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Another approach to "semantics" Date: Tue, 18 Jul 2000 17:13:45 -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 guess I want to stress that it is the "licensed player" that is considered to be the authorizing factor here ... hence, that it has nothing to do with the user's access to the work, but has everything to do with requiring DVD players to sign the licensing agreement. You start saying that this would bring up concerns about tying but then head off in another direction to investigate congress' intent instead. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Tuesday, July 18, 2000 4:25 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Another approach to "semantics" > > > Richard Hartman writes: > > I would like to see it stated, explicitly, that by > > Mr. Marks own testimony CSS can not be considered > > to be "in effect" a technological protection measure > > for controlling access to the work. It appears to > > only be the CSS licensing terms (contractual, not > > technological in nature) with which control is > > being asserted. > > I'm not sure what you're asking for. In his "authorized user" > remarks, he does say, in effect, that the point of the work is not to > keep playback to a particular set of authorized individuals --- > *anyone* with a DVD and a licensed player is, ipso facto, authorized. > > What he does say however, explicitly and repeatedly, is that it is a > technological protection measure that restricts the *means* of access > to works to authorized players; my discussion quotes him as saying > that at least twice. > > rst > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:18:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA26723 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:18:48 -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 UAA26719 for ; Tue, 18 Jul 2000 20:18:47 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id UAA07631 for ; Tue, 18 Jul 2000 20:17:22 -0400 Date: Tue, 18 Jul 2000 20:17:22 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <3974E038.B189C8F9@uic.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, it's not hard to forsee a software player with more features than anything else out there. Like freely reading any region's discs, permitting users to skip ads (the Betamax case implies that there's no obligation for viewers to watch ads) FBI warnings, etc. There are presently no consumer digital video outputs right now either, even though these are great for digital displays (e.g. LCD screens) Software patches to fix it when it breaks on certain discs (e.g. problems people have had with the Matrix, Abyss, etc) would also be great. I bought my standalone DVD player only because I knew it could easily be set up to ignore region codes. What can I say, I like imports. Presently there don't seem to be any legal players that completely satisfy the market. I would be more than happy to get a TiVo-esque DVD player if it had these sorts of features. Guess the market's not being satisfied, huh. On Tue, 18 Jul 2000, John Schulien wrote: > > there are over 70 brands of DVD players > > available, dozens of software and hardware > > DVD decoder/players for Windows, > > DVD playback built into Mac OS, Sony > > Playstation II, Xbox, Nuon, iDVD, etc. > > Where's the harmed market? > > The harmed market is for DVD content > manipulation tools. There are dozens of > programs that allow you to edit/modify/play > with audio content ripped (or "sampled") from > a CD, and so long as you do so strictly for > your own enjoyment, such manipulation is > probably fair use. > > However, there are absolutely no programs or > hardware that allows you to edit/modify/play > with video content ripped from a DVD, because > of CSS and the CSS license which prohibits > the creation of such hardware/software. > > This has probably stifled the market for > amateur video manipulation/editing software. > > > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:34:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27032 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:34:40 -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 UAA27029 for ; Tue, 18 Jul 2000 20:34:39 -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:2.21) with ESMTP id UAA21221 for ; Tue, 18 Jul 2000 20:33:45 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA20759; Tue, 18 Jul 2000 20:33:44 -0400 (EDT) Date: Tue, 18 Jul 2000 20:33:44 -0400 (EDT) Message-Id: <200007190033.UAA20759@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Another approach to "semantics" In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D17@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D17@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 guess I want to stress that it is the "licensed player" > that is considered to be the authorizing factor here ... > hence, that it has nothing to do with the user's access > to the work, but has everything to do with requiring > DVD players to sign the licensing agreement. You start > saying that this would bring up concerns about tying but > then head off in another direction to investigate > congress' intent instead. What I say right now, before "veering off", is: So, again, Mr. Marks makes plain that CSS has nothing with do with seeing whether a given user gets to see a movie -- if they have the disk, CSS will allow any licensed player to play it for them. The sole ``access control'' function of CSS, on Mr. Marks' own explicit testimony, is to restrict DVD playback to ``licensed'' players -- i.e., those whose manufacturers have agreed to abide by the plaintiffs' restrictions, whatever they may be. I really don't know how to make the point any more explicit than that. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:36:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27155 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:36:01 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA27152 for ; Tue, 18 Jul 2000 20:36:00 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id TAA12534 for ; Tue, 18 Jul 2000 19:34:50 -0500 Message-ID: <3974F6BC.B0713C45@mninter.net> Date: Tue, 18 Jul 2000 19:30:52 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Bothering me 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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Two things that have been bothering me: I. Kaplan's idea of demonstration of harm II. The plaintiff's apparent notions on the first amendment === I. Kaplan's idea of demonstration of harm - From the Wired article: "Do you know of any DVD that has been sold anywhere in the world that has been decrypted with DeCSS?" asked Martin Garbus. "Not with absolute certainty, no," Schumann replied. He also said that he didn't know of anyone who distributed a DVD online that had been decrypted with DeCSS. As Garbus kept pressing, U.S. District Judge Lewis Kaplan seemed to become irritated. Kaplan compared the query to asking the CEO of Procter & Gamble for the name and addresses of babies that are using Pampers diapers, a task that might be difficult to perform even though the company sells millions of diapers a year. "You are asking the Pampers question," Kaplan said. "I'm absolutely not asking the Pampers question," Garbus replied. === It appears to me, without the benefit of a transcript, that the judge has the absolute wrong idea about the impact this line of questioning has on the case. While not attributing to malfeasence what I can to ignorance... The judge seems to think it is not relevant that the plaintiffs have no direct evidence of harm stemming from DeCSS. Just indirect evience, hearsay and their own self-created evidence. The judge, as it appears in this passage, seems to think that the supposition or allegation of harm is enough. "Don't bother to ask them to identify instances of harm," this translates to, "that would be too much to ask." Well, my ass it is. If the plaintiffs wish to demonstrate and argue on the basis of harm, they certainly have to provide positive evidence. Not just accusations and suppositions. If the CEO of P&G wanted to argue in court that there are Pampers wearers committing a crime, I would darn hope that just saying that there are lots of pampers wearers would not suffice as evidence. I simply cannot understand the judge's logic here. If we must discuss harm at all, I should think that they have to prove it, you know, at least a little beyond "It's a big world out there" === II. The plaintiff's apparent notions re the first amendment After perusing the various depositions, I see a theme running through the plaintiff's questions, along the line: "Shouldn't the results of reverse engineering be communicated privately rather than publicly?" To which I say "huh?!" They drove at this pretty consistently. - -- Now, in the 12 instances where you personally were the discoverer of the flaw, was it you in each of those 12 instances that communicated with the proprietor of the system regarding the flaw? - --Do you regard that as inappropriate in terms of ethical standards or any other practice in your experience with respect to security, testing security or discovering flaws? They seem to believe that there is some ethical code or even law that compels reverse engineers to reveal the results of their work to someone (the reverse engineered), or to no one. This should be stopped in its tracks. The last I heard, the first amendment has no stipulations regarding asking for permission or getting speech approved before someone's reverse engineered _anything_ gets revealed for the world to see. Such an argument offends me just sitting here thinking about it. Harm shouldn't even be an issue in cases such as this. If I put $1 million behind a non-patented scheme, sold it to the public, was REd, and subsequently achieved -100% return on my money: TOO BAD FOR ME! I should have been a more savvy business person, and the judicial system should be offended if I ask it to bend the first amendment so I can squeeze a few bucks out of my valueless technology. End of line. Please, help the defense cook up a solid argument to this effect, because, at least through the baloney they telegraphed in the depositions, this is a crucial element for them. At the very least, if the plaintiffs succeed in demonstrating that DeCSS violates their rights under 1201, that 1201 is patently unconstitutional because it imposes limitations on reverse engineers' speech. Pardon the pun. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOXT2tzik9YADgV7kEQLFQACfU+GvX9aBDVruCJzHrCYnVQjvK0YAoMcO 0ShXF6d0RqoHnSbRN4+tIsEv =N6wu -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:40:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27258 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:40:45 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA27255 for ; Tue, 18 Jul 2000 20:40:44 -0400 Received: from jy01 (user-2iniil8.dialup.mindspring.com [165.121.74.168]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id UAA10790 for ; Tue, 18 Jul 2000 20:39:49 -0400 (EDT) Message-Id: <200007190039.UAA10790@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 18 Jul 2000 20:35:47 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Tech Question In-Reply-To: <4.3.2.7.2.20000718170443.00b58760@127.0.0.1> References: <200007182148.RAA07580@smtp6.mindspring.com> <8l2ehr$frs$1@blowfish.isaac.cs.berkeley.edu> <20000718152637.29979.qmail@web515.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 LiveNote seems to fit. The blurb says it transmits directly to the attorney's PC. LiveNote promotes itself as the perfect tool for an attorney to receive realtime feed and to search the testimony. Does that mean it must be approved by the court's rules to be used in court? If approved for attorneys, could anybody else get a feed, say, wirelessly? By sticking a transmitter on the court reporter's box? There are a slew of stakeholders who would benefit from not having to scribble notes, or wait for delayed transcripts. Nobody in Kaplan's court has a computer except him, the lady who sits in front of him, the court reporter, and for one time, Eric Burns' VAIO. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:47:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27356 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:47:12 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA27353 for ; Tue, 18 Jul 2000 20:47:11 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id TAA13510 for ; Tue, 18 Jul 2000 19:46:01 -0500 Message-ID: <3974F95B.5F85CE32@mninter.net> Date: Tue, 18 Jul 2000 19:42:03 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] New Depositons Available References: <39746621.81C4BD6A@mninter.net> <200007181448.KAA21712@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: > Combine that with their contention that CSS keys are only available > pursuant to a license from the DVDCCA, and, well, there you go. > > In effect, they're claiming that because CSS is a "cryptographic" > process, they have the right to determine in arbitrary ways who may > perform that process. Ah, but CSS keys are not just available from the DVDCCA. They can be reverse engineered. Sure, the easy route might be to get a license, but there are no physical or legislative barriers to implementing CSS in the absense of a license from the DVDCCA. If it were patented, perhaps, but that would be anticompetitive. So, either CSS is patented and the studios have tied a patented product to their work(s), or it is not patented and it can be legitimately reverse engineered and implemented, even under 1201(a). Regardless of the studios' relationship with the CSS licensing body. Ohhh... But maybe you have to be using a /licensed/ player to have legitimate access! But then either CSS fails as an access TPM because it can be implemented in an unlicensed player, or (confluence of events) they have certified copyright misuse because they claim the right to determine what device you may use to play back their work illegitimately. Again, regardless of the DVDCCA. It seems pretty clear to me. That must mean I'm missing somthing. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:52:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27466 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:52:28 -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 UAA27463 for ; Tue, 18 Jul 2000 20:52:27 -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:2.21) with ESMTP id UAA22475 for ; Tue, 18 Jul 2000 20:51:33 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA27154; Tue, 18 Jul 2000 20:51:32 -0400 (EDT) Date: Tue, 18 Jul 2000 20:51:32 -0400 (EDT) Message-Id: <200007190051.UAA27154@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Public reverse engineering In-Reply-To: <3974F6BC.B0713C45@mninter.net> References: <3974F6BC.B0713C45@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > They seem to believe that there is some ethical code or even law that > compels reverse engineers to reveal the results of their work to someone > (the reverse engineered), or to no one. This should be stopped in its > tracks. Counterexample --- Samba. This is an open-source implementation of the Windows file-service protocols; many details of those protocols were determined by reverse engineering on the part of the Samba developers. (It runs on anything with a reasonable Posix API, including, of course, Linux, in addition to commercial Unices such as Solaris and HP-UX). The result is, of course, widely disclosed and freely available. Many linux device drivers were also developed through reverse engineering, where the hardware manufacturers were uncooperative, or in some cases downright hostile. Again, the results are widely disclosed and freely available. Likewise for XFree86 display drivers.[*] This is, of course, exactly the sort of thing that LiViD is trying to do for DVD drives. Ole may be able to testify to the nature of some of these tools from personal experience. rst [*] For non-techies: in Linux, the display hardware is not managed by the Linux kernel, but by a "user-mode" program called an X server, one of the components of a large software package called XFree86. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:57:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27523 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:57:52 -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 UAA27520 for ; Tue, 18 Jul 2000 20:57:50 -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:2.21) with ESMTP id UAA22846 for ; Tue, 18 Jul 2000 20:56:57 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA29093; Tue, 18 Jul 2000 20:56:55 -0400 (EDT) Date: Tue, 18 Jul 2000 20:56:55 -0400 (EDT) Message-Id: <200007190056.UAA29093@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Public reverse engineering In-Reply-To: <200007190051.UAA27154@soggy-fibers.ai.mit.edu> References: <3974F6BC.B0713C45@mninter.net> <200007190051.UAA27154@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: > Counterexample --- Samba. This is an open-source implementation of > the Windows file-service protocols; many details of those protocols > were determined by reverse engineering on the part of the Samba > developers. (It runs on anything with a reasonable Posix API, > including, of course, Linux, in addition to commercial Unices such as > Solaris and HP-UX). The result is, of course, widely disclosed and > freely available. A footnote --- IIRC, the features of the Microsoft file-sharing protocols which were reverse engineered include security features. Which might be useful in bringing out the point that reverse engineering of a *proper* access control isn't useful so much in cracking it, as in implementing it faithfully. rst From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 20:58:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA27530 for dvd-discuss-outgoing; Tue, 18 Jul 2000 20:58:14 -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 UAA27527 for ; Tue, 18 Jul 2000 20:58:13 -0400 Message-ID: <20000719005648.28997.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Tue, 18 Jul 2000 17:56:48 PDT Date: Tue, 18 Jul 2000 17:56:48 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Latest from Wired 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/0,1283,37647,00.html "'Plaintiffs are willing to stipulate that there is no direct evidence in which an identifiable person decrypted (a DVD) using DeCSS,' Kaplan said after a having a private chat with both teams of lawyers. " __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 21:15:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27771 for dvd-discuss-outgoing; Tue, 18 Jul 2000 21:15:49 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA27768 for ; Tue, 18 Jul 2000 21:15:47 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA18991 for ; Tue, 18 Jul 2000 18:14:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA16922; Tue, 18 Jul 2000 18:13:05 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Bothering me Date: 18 Jul 2000 18:12:48 -0700 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8l2vag$ggp$1@blowfish.isaac.cs.berkeley.edu> References: <3974F6BC.B0713C45@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng wrote: > The judge seems to think it is not relevant that the plaintiffs have no > direct evidence of harm stemming from DeCSS. Devil's advocate argument: Where in 1201(a) is there a requirement for any evidence whatsoeover of harm? (Yes, I know there are many sophisticated responses available; such as, 1201(a) can't be constitutional if it prohibits harmless circumvention; and so on; but my point is, it seems your case would be more compelling if you were more careful about justifying why lack of harm is relevant.) From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 21:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27973 for dvd-discuss-outgoing; Tue, 18 Jul 2000 21:28:14 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA27969 for ; Tue, 18 Jul 2000 21:28:12 -0400 Received: from ppp.anonymizer.com (c02-190.015.popsite.net [64.24.73.190]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA18359 for ; Tue, 18 Jul 2000 18:29:31 -0700 (PDT) Message-Id: <4.3.2.7.2.20000718182506.00a9bc10@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 18 Jul 2000 18:28:30 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Bothering me In-Reply-To: <8l2vag$ggp$1@blowfish.isaac.cs.berkeley.edu> References: <3974F6BC.B0713C45@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 06:12 PM 7/18/2000 -0700, David A. Wagner wrote: >Chris Moseng wrote: > > The judge seems to think it is not relevant that the plaintiffs have no > > direct evidence of harm stemming from DeCSS. > >Devil's advocate argument: > >Where in 1201(a) is there a requirement for any evidence whatsoeover of harm? > > >(Yes, I know there are many sophisticated responses available; such as, >1201(a) can't be constitutional if it prohibits harmless circumvention; >and so on; but my point is, it seems your case would be more compelling >if you were more careful about justifying why lack of harm is relevant.) It isn't a 1201 issue. Harm, or lack thereof, is relevant to (most) all injunctions. And at trial, proof is required, not unsupported claims. -------------------------------------------------------------------- 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 Tue Jul 18 21:45:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA28511 for dvd-discuss-outgoing; Tue, 18 Jul 2000 21:45:44 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA28508 for ; Tue, 18 Jul 2000 21:45:42 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA19048 for ; Tue, 18 Jul 2000 20:44:32 -0500 Message-ID: <397506F9.91604EF8@mninter.net> Date: Tue, 18 Jul 2000 20:40:09 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bothering me References: <3974F6BC.B0713C45@mninter.net> <8l2vag$ggp$1@blowfish.isaac.cs.berkeley.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "David A. Wagner" wrote: > Devil's advocate argument: > > Where in 1201(a) is there a requirement for any evidence whatsoeover > of harm? It factors into the preliminary and ultimate injunction regarding the defendant's speech, and so is relevant. The PI is still at issue. Any judgement for the plaintiffs would involve a restraint on speech, and thus must be predicated on harm. Trust me, I don't like the discussion of harm at all--I agree that it is irrelevant on the face of 1201. But since we gotta do it, I think the standard for proof should be exceedingly high, don't you? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 22:58:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29825 for dvd-discuss-outgoing; Tue, 18 Jul 2000 22:58:10 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29822 for ; Tue, 18 Jul 2000 22:58:08 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id VAA26239 for ; Tue, 18 Jul 2000 21:56:56 -0500 Message-ID: <3975198A.E2030DC2@mninter.net> Date: Tue, 18 Jul 2000 21:59:22 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] musings 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 >From the deposition of Chris DiBona: But what I want to understand is you talk about using the Mediamatics DVD playing program and running a movie under the Windows operating system, and then you describe in Paragraph 17 the fact that one can copy data off of the DVD disk and use the Mediamatics program as a "DeCSS equivalent." 0-0-0-0 Errr. I hadn't even thought of trying this! Has this been common knowledge and I'm just slow, or was this a genuine revelation? Basically, he ran his CSS-licensed software, and while it had the player unlocked it allowed him to copy the scrambled VOBs. Geez, I can't believe I didn't think of this before. My brain must be in backwards. So I ran my Creative Labs Encore software with Blade Runner in the drive. I copied a "scrambled" 89Meg VOB off the drive using windows explorer with no problem. I also used DeCSS to copy the file, too. Upon playback, as long as the correct DVD was in the drive, the scrambled file played back fine. When I took the BR DVD out, the allegedly descrambled file still played fine, but the scrambled one surprised me: It played back distorted sound, but no video. Hmmm. Well, ignoring the surprising result of having some playback functionality... I have had an epiphany regarding the plaintiff's case. It may or may not help the group. They have a problem with unlimited copying and distribution of the unscrambled files, however, they may not take issue with the uninhibited distribution of the encrypted files... Why this didn't occur to me before, I don't know. *If the encrypted files only operate correctly in the presence of a CSS-compliant device and that it certifies a DVD is present, *this may be their argument for effective access control. Not access to the encrypted work, or copyability the unencrypted work, but access to view a CSS encrypted work is only granted in proper CSS implementations when the DVD is present. Thus CSS compliance hinges not on specific license terms with the DVDCCA (except making unencrypted VOBs available?), but on the CSS-compliant device's reliance on the presence of the DVD to playback an encrypted work. So their argument will center not on the specific abilities of a CSS-decrypting player in terms of copying and unencrypted file availability, but in terms of the CSS-compliant device ensuring that the source (or indistinguishable, legitimate facsimilie) is used in conjunction with the encrypted file. This specifically hinders the public's ability to make fair use, specifically to media shift. Media shifting, in my view, implies that the source is not available to ascertain the access rights of the user. I should be able to put my movie on my hard drive without needing the DVD ever again. So what the studios have done is not tie access their work to the playback device, but to the media itself. What do you make of this conundrum? Have I made any sense? Was this all ready covered? I just can't believe I hadn't explored this before. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 23:42:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31611 for dvd-discuss-outgoing; Tue, 18 Jul 2000 23:42:11 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA31607 for ; Tue, 18 Jul 2000 23:42:10 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PXWC>; Tue, 18 Jul 2000 23:46:01 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E61@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Questions for Johansen Date: Tue, 18 Jul 2000 23:45:51 -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 questions that Johansen might be able to answer are: 1. Questions that show how the .vob -> .mp2 engine is a software component. Questions about possible uses, such as a player component, extracting clips, part of a filesystem, etc. 2. Questions that go to open source movement; how programmers share code, how programmers develop in collaborative groups. 3. Questions about the LiViD group in particular; how code is developed in that group, what the technical problems are in producing a player not related to CSS. I sort of hope he does not testify, but the plaintiffs will probably want him and they will want to show him as a nasty hacker list. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 18 23:57:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA31770 for dvd-discuss-outgoing; Tue, 18 Jul 2000 23:57:40 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA31766 for ; Tue, 18 Jul 2000 23:57:38 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id UAA19452 for ; Tue, 18 Jul 2000 20:56:42 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA17073; Tue, 18 Jul 2000 20:54:56 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Bothering me Date: 18 Jul 2000 20:53:46 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8l38oa$gla$1@blowfish.isaac.cs.berkeley.edu> References: <3974F6BC.B0713C45@mninter.net> <8l2vag$ggp$1@blowfish.isaac.cs.berkeley.edu> <397506F9.91604EF8@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng wrote: > "David A. Wagner" wrote: > > Devil's advocate argument: > > > > Where in 1201(a) is there a requirement for any evidence whatsoeover > > of harm? > > It factors into the preliminary and ultimate injunction regarding the > defendant's speech, and so is relevant. The PI is still at issue. Yes, good point. Thanks for pointing out my error/omission. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 00:00:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA32124 for dvd-discuss-outgoing; Wed, 19 Jul 2000 00:00:13 -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 AAA32121 for ; Wed, 19 Jul 2000 00:00:12 -0400 Message-ID: <20000719035848.20597.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Tue, 18 Jul 2000 20:58:48 PDT Date: Tue, 18 Jul 2000 20:58:48 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Evidence that antitrust is an issue in the trial To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's more evidence that the defense intended to raise legitimate antitrust issues before we knew Kaplan's DVD antitrust relationship with the plaintiffs: http://www.feedmag.com/re/re340_master.html (The main page link is dated "RE: | 05.24.00" ) FEED: Is there a case from your past that this most resembles, or does it seem very different because of all the technological issues? GARBUS: I think the technology makes it really different. Take the matter of operating systems -- there's another and very separate issue that you have with the Linux operating system. One of the reasons that there's so much interest in the DeCSS is that DVDs are not yet licensed to play on the Linux operating system. Now, to bring us back to the Betamax case, is Linux like a VCR? Can the motion-picture industry control distribution from the very beginning to the very end? Maybe the only platforms that can play DVD are those that pay the licensing fees. Or can you have other systems? Is that a violation of antitrust? Years ago, they made the motion-picture studios give up their control over theaters because they found it was a violation of antitrust. There are similar issues here. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 00:34:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA32329 for dvd-discuss-outgoing; Wed, 19 Jul 2000 00:34:46 -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 AAA32326 for ; Wed, 19 Jul 2000 00:34:45 -0400 Message-ID: <20000719043321.24995.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Tue, 18 Jul 2000 21:33:21 PDT Date: Tue, 18 Jul 2000 21:33:21 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] USAToday article To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's another one to add to the list of stories: http://www.usatoday.com/life/cyber/tech/review/crh310.htm __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 03:19:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA01519 for dvd-discuss-outgoing; Wed, 19 Jul 2000 03:19:43 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA01516 for ; Wed, 19 Jul 2000 03:19:40 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id DAA30853; Wed, 19 Jul 2000 03:19:39 -0400 Message-ID: <3975568B.4ACF7B1@mit.edu> Date: Wed, 19 Jul 2000 03:19:39 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Salon article 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 A Salon article about the case is up: http://salon.com/tech/feature/2000/07/19/decss_trial/index.html Here are some quotes I really love: On what this case is about: "There's an important legal difference between the Napster case and this one," says Leon Gold, one of the studios' attorneys. That case is about whether swapping music files is equivalent to stealing; this one is about whether a software program undermines the ability of copyright holders to determine how their content is consumed. "That's why the number of DVD copies made is irrelevant. There will be severe damages to the plaintiff unless the court enforces the anti-circumvention statute, but there are already severe damages. We've lost control. The greatest harm is that DeCSS took away what Congress gave us." On the impact of the case: [Mark Lemley is a law professor at Berkeley] "Looking at the bigger picture, how this case is decided will determine how digital video will develop," says Lemley. "It could establish the pattern of fighting new technology rather than working with it. On the other hand, if the studios lose, they'll find some way to work with digital video, which would be better for them in the long run." [This is always what gets me about these cases. Content providers go to court asking the court to decide the Betamax case the other way, even though they know video tapes became a huge profit center. They're trying to throw away long-term money because of short-term fear, and they never seem to figure that out. On that level, the studios deserve to win (and lose that money), and the only problem is that we don't deserve to lose with them.] On DivX: "Having tried DivX myself, and found it to be incredibly complicated and the video quality abysmal, it's hard to believe that DeCSS and DivX will cause movie studios to suddenly wake up one morning anytime soon, 'finding out they've been Napsterized,' as the studios' lawyer, Leon Gold, phrased it in his opening statement." - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 04:10:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA01805 for dvd-discuss-outgoing; Wed, 19 Jul 2000 04:10:10 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA01799 for ; Wed, 19 Jul 2000 04:09:59 -0400 Date: Wed, 19 Jul 2000 01:06:44 -0700 Message-Id: <200007190106.AA1408631436@mail.virtualrecordings.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Robin Gross" To: CC: , Subject: [dvd-discuss] Movie Studios Admit DeCSS Not Related to Piracy X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: July 18, 2000 Universal City Studios v. 2600 Magazine Movie Studios Admit DeCSS Not Related to Piracy The cyber trial of the century began this morning with testimony by Frank Andrew Stevenson the Norwegian cryptographer who first published an analysis of the CSS security cipher. Stevenson explained it was necessary to independently build a Linux DVD player because Linux users had no way to watch their DVDs on their computers the way Microsoft Windows users could. Stevenson also explained why DeCSS, a Windows program, is necessary for the development of a Linux DVD player. According to Stevenson, Linux does not read a DVD's UDF files so the project had to be tested on Windows - which is able to read the UDF file format. The movie studios next called to the stand Robert Schumann, who owns a company called Cinea that receives more than 50% of its yearly income from the MPAA and the Proskaur Rose law firm. Schumann stated his expertise comes largely from being the chief architect of the DiVX security system, which he claimed was a "better way to rent movies to consumers." Last year, DiVX failed when the public rejected its anti-consumer features. Schumann's affidavit and testimony that DeCSS was created to be a tool of piracy was severely undermined on cross-examination by EFF's defense team when asked about a report he submitted to the MPAA concluding that members of the Livid mailing list (where DeCSS was published) were attempting to build a Linux DVD player. After the defense asked Schumann whether the studios have found any infringement at all related to DeCSS, they agreed to stipulate that they have no evidence of a single instance of illegal copying attributable to the software which they are demanding the court ban. The studios' argued infringement of copyrights is irrelevant to whether anyone has violated the Digital Millennium Copyright Act. Jon Johansen, the Norwegian who co-wrote DeCSS when he was fifteen is expected to testify on behalf of the defense on Thursday. The teen created the software to play the DVDs he had bought on family vacation in France that wouldn't play on his DVD player which was "region coded" for another area. The studios have also been pursuing a criminal case in Norway against Jon and his father Per Johansen for publishing the software on the Internet in October 1999. On Wednesday, Marsha King a vice-president of Time Warner's pay-per-view division will testify about the studios' anti-piracy efforts. A transcript of Monday and Tuesday's court proceedings will be available on EFF's site Wednesday. An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ ------------------------------------------------------------------ The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 05:33:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02566 for dvd-discuss-outgoing; Wed, 19 Jul 2000 05:33:16 -0400 Received: from mtiwmhc21.worldnet.att.net (mtiwmhc21.worldnet.att.net [204.127.131.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA02563 for ; Wed, 19 Jul 2000 05:33:15 -0400 Received: from [12.88.195.157] by mtiwmhc21.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000719093218.GAYZ9377.mtiwmhc21.worldnet.att.net@[12.88.195.157]> for ; Wed, 19 Jul 2000 09:32:18 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 19 Jul 2000 05:32:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Trial transcripts at EFF Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The transcript of court proceedings from day 1 is available at: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000717_ny_trial_transcript.html The transcript of court proceedings from day 2 is available at: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000718_ny_trial_transcript.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 07:02:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA03334 for dvd-discuss-outgoing; Wed, 19 Jul 2000 07:02:46 -0400 Received: from web2905.mail.yahoo.com (web2905.mail.yahoo.com [128.11.68.48]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA03331 for ; Wed, 19 Jul 2000 07:02:44 -0400 Received: (qmail 10217 invoked by uid 60001); 19 Jul 2000 11:01:51 -0000 Message-ID: <20000719110151.10216.qmail@web2905.mail.yahoo.com> Received: from [164.100.244.219] by web2905.mail.yahoo.com; Wed, 19 Jul 2000 04:01:51 PDT Date: Wed, 19 Jul 2000 04:01:51 -0700 (PDT) From: Inderjeet Singh Sehgal Subject: [dvd-discuss] Long distance Education via Internet 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 Dear Friends, Let me introuduce myself, I am Inderjeet Singh Sehgal, Senior Technical Assistant working in Bioinformatics Centre, Jawaharlal Nehru University, New Delhi, India. I am involved in technical support to our users in the university and others. >From past two years I am involved in a Indo-German Project "Cutural Globalization" using moderen communication technology and Internet. We are counducting a Virtual Online classes from JNU (INDIA)to University of Freiburg (GERMANY) using video conferencing via internet.I was in Freiburg last week as an technical expert to particapate in the workshop/seminar held from 26-1st of July. Recently our project has got world's best award for taching humanities using Internt. I am writing to you to explore the possibility of suitable position in future so that I can work with you in this regard and for the benefit of our academic community. I have an 15 years of computer experience including word processing softwares, Multimedia and graphic application TCP/IP, and Netoworking. Please feel free to write me back. Looking forward for your mail. with regards Inderjeet Singh Sehgal tel 91-116165412 (work) > 91-116160885 (home) > 91-116165886 (fax) > inderjeet@rocketmail.com inderjeet@hotvoice.com __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 07:03:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA03343 for dvd-discuss-outgoing; Wed, 19 Jul 2000 07:03:01 -0400 Received: from web2903.mail.yahoo.com (web2903.mail.yahoo.com [128.11.68.46]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id HAA03340 for ; Wed, 19 Jul 2000 07:02:59 -0400 Received: (qmail 163 invoked by uid 60001); 19 Jul 2000 11:02:06 -0000 Message-ID: <20000719110206.162.qmail@web2903.mail.yahoo.com> Received: from [164.100.244.219] by web2903.mail.yahoo.com; Wed, 19 Jul 2000 04:02:06 PDT Date: Wed, 19 Jul 2000 04:02:06 -0700 (PDT) From: Inderjeet Singh Sehgal Subject: [dvd-discuss] Long distance Education via Internet 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 Dear Friends, Let me introuduce myself, I am Inderjeet Singh Sehgal, Senior Technical Assistant working in Bioinformatics Centre, Jawaharlal Nehru University, New Delhi, India. I am involved in technical support to our users in the university and others. >From past two years I am involved in a Indo-German Project "Cutural Globalization" using moderen communication technology and Internet. We are counducting a Virtual Online classes from JNU (INDIA)to University of Freiburg (GERMANY) using video conferencing via internet.I was in Freiburg last week as an technical expert to particapate in the workshop/seminar held from 26-1st of July. Recently our project has got world's best award for taching humanities using Internt. I am writing to you to explore the possibility of suitable position in future so that I can work with you in this regard and for the benefit of our academic community. I have an 15 years of computer experience including word processing softwares, Multimedia and graphic application TCP/IP, and Netoworking. Please feel free to write me back. Looking forward for your mail. with regards Inderjeet Singh Sehgal tel 91-116165412 (work) > 91-116160885 (home) > 91-116165886 (fax) > inderjeet@rocketmail.com inderjeet@hotvoice.com __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 09:09:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA04447 for dvd-discuss-outgoing; Wed, 19 Jul 2000 09:09:09 -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 JAA04443 for ; Wed, 19 Jul 2000 09:09:08 -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:2.21) with ESMTP id JAA06160 for ; Wed, 19 Jul 2000 09:08:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA01371; Wed, 19 Jul 2000 09:08:14 -0400 (EDT) Date: Wed, 19 Jul 2000 09:08:14 -0400 (EDT) Message-Id: <200007191308.JAA01371@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Salon article In-Reply-To: <3975568B.4ACF7B1@mit.edu> References: <3975568B.4ACF7B1@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > On what this case is about: > "There's an important legal difference between the Napster > case and this one," says Leon Gold, one of the studios' > attorneys. That case is about whether swapping music files > is equivalent to stealing; this one is about whether a > software program undermines the ability of copyright > holders to determine how their content is consumed. "That's > why the number of DVD copies made is irrelevant. There will > be severe damages to the plaintiff unless the court > enforces the anti-circumvention statute, but there are > already severe damages. We've lost control. The greatest > harm is that DeCSS took away what Congress gave us." So, what is it that DeCSS "took away"? *) Not the ability to control copies --- even their lawyer says now that it wasn't about that. (Will he tell their PR firm?) *) Not the ability to determine who will access their works --- no one is denied access to a movie on DVD by the action of CSS. As Mr. Marks so eloquently put it, "you press 'play', and it plays". What DeCSS "takes away" is "the ability of copyright holders to determine how their content is consumed" --- i.e., the right to regulate the player market and impose use (not access) controls. A right which (pace Nimmer!) Congress made plain that they were *not* granting to copyright holders. As Wendy posted to this list months ago, in http://eon.law.harvard.edu/archive/dvd-discuss/msg01312.html The analogy to physical property and trespass is at the forefront in the legislative history. Nimmer distinguishes between access and usage by saying that "access" is the initial entry to the property, while "use" is whatever the entrant does on the property (presumably including skipping the foyer and reading the books on its shelves out of order). 1 Nimmer on Copyright (1999 Supp.), 12A.03 Circumvention of access control devices under 1201(a)(1) is "breaking into" a work. H.R. Rep. No. 551, 105th Cong., 2d Sess. Part 1, at 17 (1998) (H. Rep.) ("The act of circumventing a technological protection measure put in place by a copyright owner to control access to a copyrighted work is the electronic equivalent of breaking into a locked room in order to obtain a copy of a book"). Nimmer notes that this is not copyright infringement, but "paracopyright." Nimmer at 12A-30. "The invasion inside another's property is itself the offense." Nimmer at 12A-29. See S. Rep. No. 90, 105th Cong., 2d Sess., at 11 (1998) (S. Rep.) (device prohibition "analogous to making it illegal to break into a house using a tool, the primary purpose of which is to break into houses"). The trafficking ban of 1201(a)(2) "targets not those who break into another's domain, but instead those who facilitate the process -- say, those who market siege engines or catapults, come up with ingenious infiltration strategies, and generally facilitate penetration of the stronghold." Nimmer at 12A-30. The "additional violations" of 1201(b)(1) address circumvention for activities already prohibited by existing copyright law. But, "if a guest invited inside the manor contravenes the seigneur's edicts, then the trespass at hand differs qualitatively from breaking and entering. Thus the basic provision [1201(a)(1) still] is inapplicable to 'the subsequent actions of a person once he or she has obtained authorized access to a copy of a work protected under Title 17, even if such actions involve circumvention of additional forms of technological protection measures.'" Nimmer at 12A-31, quoting H.Rep. at 18, S. Rep. at 28. "Once lawfully inside the castle, i.e. vis-a-vis a work that has been lawfully acquired, that individual may circumvent pursuant to lawful conduct, such as to make fair use of the subject work." Nimmer at 12A-33. See H. Rep. at ?, (definitions apply to "protections against unauthorized initial access to a work"). Once inside the house, a guest is limited only by copyright law -- not access controls. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 09:25:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA04630 for dvd-discuss-outgoing; Wed, 19 Jul 2000 09:25:07 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA04627 for ; Wed, 19 Jul 2000 09:25:02 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id IAA31516 for ; Wed, 19 Jul 2000 08:23:49 -0500 Message-ID: <3975AC1F.376B10E8@mninter.net> Date: Wed, 19 Jul 2000 08:24:47 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Wine 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 Has anybody tried to run DeCSS under Wine? I don't have it installed. In fact, wouldn't Wine be a good project to bring up? > Q. Does DeCSS run under the Microsoft Windows operating system? > Schumann: > A. Absolutely. In fact, that's the only place that the DeCSS > executable works. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 10:08:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05209 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:08:42 -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 KAA05206 for ; Wed, 19 Jul 2000 10:08:40 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA15631 for ; Wed, 19 Jul 2000 10:07:47 -0400 (EDT) Date: Wed, 19 Jul 2000 10:07:47 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] trial transcripts of Michael Shamos 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 http://www.eff.org/IP/Video/MPAA_DVD_cases/20000717_ny_trial_transcript.html at 72 13 Q. And VaioBoy refers to the name of the computer that you 14 and your assistant had purchased? 15 A. Well, he had to make up a name or a handle for himself, 16 and since he was on the Sony Vaio computer, he called himself 17 VaioBoy. 18 Q. Who is eaRoSoL? 19 A. I don't know. EaRoSoL is an individual who was in the 20 chat room who offered to exchange DiVX with us. Is Earosol on the witness list? Have any successful attamps been made to contact him/her? Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 10:15:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05369 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:15:47 -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 KAA05366 for ; Wed, 19 Jul 2000 10:15:46 -0400 Received: from travel-net.com (trj18.travel-net.com [207.176.160.18]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id JAA06609 for ; Wed, 19 Jul 2000 09:12:56 -0400 Message-ID: <3975B7BC.A1EA503C@travel-net.com> Date: Wed, 19 Jul 2000 10:14:20 -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] Tech Question References: <200007182305.e6IN5c820935@tbird.iworld.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 Rares Marian wrote: > > John Young wrote: > > >Judge Kaplan has a laptop on his desk which appears to > >get realtime feed from the court reporter for the proceedings. > >He occasionally quotes from it. > > > >The court reporter, when asked to read back something, > >reads from the paper tape coming from a machine which > >has stenographic symbols on it, not text. (I could see this > >from the jury box where we were allowed to sit on Monday.) > >So there appears to be a program which either converts > >the court reporters input to text which Kaplan received or > >Kaplan has a system in the courtroom which converts voice > >to text. > > > >The court reporters are changed every hour our so, and each > >takes away a floppy which I assume is a digital file of the > >proceedings that is taken somewhere to be converted to > >hardcopy text for distribution to the parties for a robust fee. > >It appears that Kaplan gets the proceedings immediately in > >digital form but does not share that with the parties. > > > >Now, my tech question is, is there a device by which I > >can snarf what's on Kaplan's laptop in order to produce an > >immediate transcript for public consumption. It would need to > >work from about 100 feet away, say on a balcony from a > >building which faces the courtroom. Or maybe from a public > >street with a directional receiver -- that would be 12 stories > >down or about 150 feet. > > > >Assume prohibitions on intercept of electronic communications > >are not applicable, as with the FBI's Carnivore. > > Is it invasion of privacy, contempt of court, disrespect for court proceedings? Probably all of the above. Perhaps even under some wiretap statutes. Dont even think of going there. Also, not to start a thread on this or even prolong one, but this kinda interception was easy back in the days of 80 col. green screen and even color. But bit-mapped graphics or graphic operating systems: ooooooops! not so easy. pretty well impossible, especially if there are more than one computers in recieving range. > > I don't know so I ask. > > Rares > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.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 Wed Jul 19 10:19:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05462 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:19:09 -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 KAA05459 for ; Wed, 19 Jul 2000 10:19:08 -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 KAA01048 for ; Wed, 19 Jul 2000 10:18:14 -0400 (EDT) Message-Id: <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 19 Jul 2000 10:18:18 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Where do we go from here? In-Reply-To: References: <200007181817.OAA12672@smtp6.mindspring.com> <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.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 04:32 PM 7/18/00 -0400, Arnold G. Reinhold wrote: >PS Can anyone tell me where the trail is being held? I plan to be in NYC >for MacWorld and would like to stop by. It's in the Federal courthouse for the Southern District, in downtown Manhattan: 500 Pearl Street, Courtroom 12D beginning at 9 a.m. daily A subway map is linked off the http://eon.law.harvard.edu/openlaw/DVD/ page. (Brooklyn Bridge/City Hall stop) --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 Wed Jul 19 10:24:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05558 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:24:11 -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 KAA05555 for ; Wed, 19 Jul 2000 10:24:10 -0400 Received: from travel-net.com (trj18.travel-net.com [207.176.160.18]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id JAA07305 for ; Wed, 19 Jul 2000 09:21:24 -0400 Message-ID: <3975B9B1.E5F81988@travel-net.com> Date: Wed, 19 Jul 2000 10:22:41 -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] Tech Question References: <20000718152637.29979.qmail@web515.mail.yahoo.com> <200007182148.RAA07580@smtp6.mindspring.com> <3974EB73.C81A17A8@mninter.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 ummmmmm Im about 300 messages backlogged in my inbox but can we seriously kill this thread???? Or am I gonna have to go get an injunction? Chris Moseng wrote: > > John Young wrote: > > > > Judge Kaplan has a laptop on his desk which appears to > > get realtime feed from the court reporter for the proceedings. > > He occasionally quotes from it. > > Well, is it wireless or wired? If it is wireless, you might try to get a > hold of a wireless NIC and see what's readily available. Then you might > see if you can put that NIC into promiscuous mode and catch all the data > and log it (don't know if this is possible with wireless NICs; it may be > technologically impossible or not an option with such devices, > intentionally, for security purposes). > > If it is wired, you can run your own wire or install a camera, both > would probably be hampered by the courthouse's TPM--police with guns. > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- 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 Jul 19 10:38:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05714 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:38:41 -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 KAA05711 for ; Wed, 19 Jul 2000 10:38:40 -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 KAA07978 for ; Wed, 19 Jul 2000 10:37:45 -0400 (EDT) Message-Id: <4.2.2.20000719102148.02d7d920@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Wed, 19 Jul 2000 10:37:48 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Salon article In-Reply-To: <200007191308.JAA01371@soggy-fibers.ai.mit.edu> References: <3975568B.4ACF7B1@mit.edu> <3975568B.4ACF7B1@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 09:08 AM 7/19/00 -0400, Robert S. Thau wrote: >Ravi Nanavati writes: > > On what this case is about: > > "There's an important legal difference between the Napster > > case and this one," says Leon Gold, one of the studios' > > attorneys. That case is about whether swapping music files > > is equivalent to stealing; this one is about whether a > > software program undermines the ability of copyright > > holders to determine how their content is consumed. "That's > > why the number of DVD copies made is irrelevant. There will > > be severe damages to the plaintiff unless the court > > enforces the anti-circumvention statute, but there are > > already severe damages. We've lost control. The greatest > > harm is that DeCSS took away what Congress gave us." >So, what is it that DeCSS "took away"? > > *) Not the ability to control copies --- even their lawyer says > now that it wasn't about that. (Will he tell their PR firm?) > > *) Not the ability to determine who will access their works > --- no one is denied access to a movie on DVD by the action of > CSS. As Mr. Marks so eloquently put it, "you press 'play', > and it plays". > >What DeCSS "takes away" is "the ability of copyright holders to >determine how their content is consumed" --- i.e., the right to >regulate the player market and impose use (not access) controls. Amazing. I hope they're as forthright in court, because that's clearly NOT the control Congress intended to give them, as Rob's earlier legislative history analysis shows. It's also a level of control we've got good constitutional arguments against. I'd very much like to see more emphasis on this point. This is the denial of fair use; the insistence that only "approved" uses are permitted specifically contradicts fair use's _expectation_ that permissible uses will be un-approved. Fair use is statutory authorization for uses such as parody that the copyright owner would prefer to bar. I think this argument follows from the technical authorization arguments, if they claim that authority is granted only through the use of a licensed player of which the license requires it to accept this use control. The studios are demanding the right to implement barriers impermeable to fair use, which Congress didn't and couldn't grant. --Wendy >A right which (pace Nimmer!) Congress made plain that they were *not* >granting to copyright holders. As Wendy posted to this list months >ago, in http://eon.law.harvard.edu/archive/dvd-discuss/msg01312.html > >The analogy to physical property and trespass is at the forefront in >the legislative history. Nimmer distinguishes between access and >usage by saying that "access" is the initial entry to the property, >while "use" is whatever the entrant does on the property (presumably >including skipping the foyer and reading the books on its shelves out >of order). 1 Nimmer on Copyright (1999 Supp.), 12A.03 > >Circumvention of access control devices under 1201(a)(1) is "breaking >into" a work. H.R. Rep. No. 551, 105th Cong., 2d Sess. Part 1, at 17 >(1998) >(H. Rep.) ("The act of circumventing a technological protection >measure put in place by a copyright owner to control access to a >copyrighted work is the electronic equivalent of breaking into a >locked room in order to obtain a copy of a book"). Nimmer notes that >this is not copyright infringement, but "paracopyright." Nimmer at >12A-30. "The invasion inside another's property is itself the >offense." Nimmer at 12A-29. See S. Rep. No. 90, 105th Cong., 2d >Sess., at 11 (1998) > (S. Rep.) >(device prohibition "analogous to making it illegal to break into a >house using a tool, the primary purpose of which is to break into >houses"). > >The trafficking ban of 1201(a)(2) "targets not those who break into >another's domain, but instead those who facilitate the process -- say, > >those who market siege engines or catapults, come up with ingenious >infiltration strategies, and generally facilitate penetration of the >stronghold." Nimmer at 12A-30. The "additional violations" of >1201(b)(1) address circumvention for activities already prohibited by >existing copyright law. > >But, "if a guest invited inside the manor contravenes the seigneur's >edicts, then the trespass at hand differs qualitatively from breaking >and entering. Thus the basic provision [1201(a)(1) still] is >inapplicable to 'the subsequent actions of a person once he or she has >obtained authorized access to a copy of a work protected under Title >17, even if such actions involve circumvention of additional forms of >technological protection measures.'" Nimmer at 12A-31, quoting >H.Rep. at 18, S. Rep. at 28. "Once lawfully inside the castle, >i.e. vis-a-vis a work that has been lawfully acquired, that individual >may circumvent pursuant to lawful conduct, such as to make fair use of >the subject work." Nimmer at 12A-33. See H. Rep. at ?, (definitions >apply to "protections against unauthorized initial access to a work"). >Once inside the house, a guest is limited only by copyright law -- not >access controls. > >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 Wed Jul 19 10:40:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA05812 for dvd-discuss-outgoing; Wed, 19 Jul 2000 10:40:05 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA05808 for ; Wed, 19 Jul 2000 10:40:05 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id KAA03670 for ; Wed, 19 Jul 2000 10:39:12 -0400 Date: Wed, 19 Jul 2000 10:39:12 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: [dvd-discuss] PI, showing of harm 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 OK, I'm halfway through the 1st day's transcript and as I read the P's arguments unfolding I see them driving very hard at showing possible harm for the sake of the PI. While I haven't yet read the cross of Shamos this was brewing in the back of my head and I wanted to get it out in some form before I forgot it. We've touched on it at times, but I don't think we ever put it all in one place. (Please forgive the somewhat stream-of-consciousness format.) The whole reason that the MPAA persuaded any of this shit to fly in Congress was "digital is different." Why do people buy/rent DVDs instead of VHS? 1. video quality is better. 2. "Random-Access"-type navigation within the movie 3. 5.1 digital surround sound 4. alternate soundtracks (foreign language) 5. subtitles in several languages. 6. other extra goodies: commentary, special FX, making-of, &etc. How many of these features are available in a DIVXed version of the DVD? (Hint: I'm thinking of a number between none and zero, here.) 1. video quality hugely degraded, particularly on a large screen. 2. fast-forward/rewind only. (ever tried to skip ahead using ASF? The codec basically forces the processor to go through all the intervening crap, so it's essentially the same as FF.) 3. Stereo only, and probably subject to artifacts produced by ripper's soundcard/encoder. 4. You're stuck with whatever the ripper chose. 5. Nada. 6. Sorry, goodies not included. In order to show the potential harm, wouldn't Ps have to prove that the availability of DIVXs removes potential sales from the DVD market? I certainly wouldn't watch a DIVX of a movie that I could otherwise rent on DVD for $2.50 at my local video store.. and if I wanted to own it I'd want the DVD, with surround and all the bells and whistles. -- Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 11:05:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06082 for dvd-discuss-outgoing; Wed, 19 Jul 2000 11:05:18 -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 LAA06078 for ; Wed, 19 Jul 2000 11:05:16 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id LAA02029 for ; Wed, 19 Jul 2000 11:04:22 -0400 (EDT) Date: Wed, 19 Jul 2000 11:04:22 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Schuman's testimony Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Why do I get the feeling that Mr Schuman has never used a C or C++ compiler? 9 Q. Now, you mentioned the word or the word source code, what 10 is that? 11 A. Source code is the -- that's the original form of a 12 computer program. It's the form in which the computer program 13 is written and it is in a form that can be edited and 14 understood and modified over time. So, and it's typically 15 written in a computer language, typically program language 16 such as CC or 'C.' http://www.eff.org/IP/Video/MPAA_DVD_cases/20000718_ny_trial_transcript.html at 258 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 11:23:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06487 for dvd-discuss-outgoing; Wed, 19 Jul 2000 11:23:44 -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 LAA06481 for ; Wed, 19 Jul 2000 11:23:35 -0400 Received: from ip109.bedford8.ma.pub-ip.psi.net ([38.32.78.109]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13EvgH-0004jY-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 11:22:42 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] trial transcripts of Michael Shamos Date: Wed, 19 Jul 2000 11:16:32 -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 LAA06483 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 19 Jul 2000 10:07:47 -0400 (EDT), Jeremy A Erwin wrote: >Is Earosol on the witness list? Have any successful attamps been made to >contact him/her? Is eaRoSoL the @home user who was deleted from the deposition? Did they try /whois ? Might it have been more responsible to do a controlled demo with two assistants instead of their VaioBoy and an unknown eaRoSoL? Did the producer of Sleepless agree to donate that film to IRC at large? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 11:27:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06677 for dvd-discuss-outgoing; Wed, 19 Jul 2000 11:27:13 -0400 Received: from server1.cluebot.com (server1.cluebot.com [216.110.36.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06674 for ; Wed, 19 Jul 2000 11:27:12 -0400 Received: (from declan@localhost) by server1.cluebot.com (8.9.3/8.9.3) id KAA09909 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 10:38:58 -0500 Date: Wed, 19 Jul 2000 10:38:58 -0500 From: Declan McCullagh To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] trial transcripts of Michael Shamos Message-ID: <20000719103858.A9888@server1.cluebot.com> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.2i In-Reply-To: ; from rongus@tiac.net on Wed, Jul 19, 2000 at 11:16:32AM -0400 X-News-Site: http://www.wired.com/ X-URL: http://www.mccullagh.org/ Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu BTW I could see the placards. It's aerosol (with weird caps). -Declan On Wed, Jul 19, 2000 at 11:16:32AM -0400, Ron Gustavson wrote: > On Wed, 19 Jul 2000 10:07:47 -0400 (EDT), Jeremy A Erwin wrote: > > >Is Earosol on the witness list? Have any successful attamps been made to > >contact him/her? > > Is eaRoSoL the @home user who was deleted from > the deposition? > > Did they try /whois ? > > Might it have been more responsible to do a controlled > demo with two assistants instead of their VaioBoy and > an unknown eaRoSoL? > > Did the producer of Sleepless agree to donate that film > to IRC at large? > > > __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 11:39:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06869 for dvd-discuss-outgoing; Wed, 19 Jul 2000 11:39:03 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA06865 for ; Wed, 19 Jul 2000 11:38:59 -0400 Received: from ppp.anonymizer.com (c3T2-147.015.popsite.net [216.126.186.147]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id IAA17401 for ; Wed, 19 Jul 2000 08:40:18 -0700 (PDT) Message-Id: <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 19 Jul 2000 08:39:14 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] A (Live)Note on the Trial Transcripts In-Reply-To: <20000719103858.A9888@server1.cluebot.com> 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 At 10:38 AM 7/19/2000 -0500, Declan McCullagh wrote: >BTW I could see the placards. It's aerosol (with weird caps). > >-Declan > >On Wed, Jul 19, 2000 at 11:16:32AM -0400, Ron Gustavson wrote: > > On Wed, 19 Jul 2000 10:07:47 -0400 (EDT), Jeremy A Erwin wrote: > > > > >Is Earosol on the witness list? Have any successful attamps been made to > > >contact him/her? > > > > Is eaRoSoL the @home user who was deleted from > > the deposition? Yesterday, John Young mentioned that Kaplan was reading the transcripts in real time on his laptop, but that when the reporter was asked to read something back, the reporter read from the steno paper notes, not the ASCIIfied translation. LiveNote is good, but as you might expect, it is not perfect. And, no matter how good it is, it is no better than the input. One small right thing Kaplan did early in the first day was to ask for a glossary of terms which, presumably, the court reporter(s) would not recognize. Transcripts (depo or trial) typically are not done overnight. They have to be carefully proofread, among other things, and when so-called "dailies" are being done, as here, there are bound to be more mistakes, for lack of time to get clarifications, check spelling, etc. I toss this out simply so that transcript readers will know that what they are reading is not necessarily a 100% accurate rendition of what was said. Nothing deliberate or malicious, just the result of when anything is done in a hurry. -------------------------------------------------------------------- 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 Wed Jul 19 11:55:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA07360 for dvd-discuss-outgoing; Wed, 19 Jul 2000 11:55:16 -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 LAA07357 for ; Wed, 19 Jul 2000 11:55:15 -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:2.21) with ESMTP id LAA27526 for ; Wed, 19 Jul 2000 11:54:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA02401; Wed, 19 Jul 2000 11:54:21 -0400 (EDT) Date: Wed, 19 Jul 2000 11:54:21 -0400 (EDT) Message-Id: <200007191554.LAA02401@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Salon article In-Reply-To: <4.2.2.20000719102148.02d7d920@pop.bellatlantic.net> References: <3975568B.4ACF7B1@mit.edu> <200007191308.JAA01371@soggy-fibers.ai.mit.edu> <4.2.2.20000719102148.02d7d920@pop.bellatlantic.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > At 09:08 AM 7/19/00 -0400, Robert S. Thau wrote: > >What DeCSS "takes away" is "the ability of copyright holders to > >determine how their content is consumed" --- i.e., the right to > >regulate the player market and impose use (not access) controls > >[by using the *pretext* of access control as a club] > > Amazing. I hope they're as forthright in court, because that's clearly NOT > the control Congress intended to give them, as Rob's earlier legislative > history analysis shows. It's also a level of control we've got good > constitutional arguments against. I'd very much like to see more emphasis > on this point. Well, I've got twenty-odd pages of analysis along these lines so far in http://www.ai.mit.edu/people/rst/dmca/auth/auth.html --- please let me know which arguments you think are worth expanding on. BTW, there is some stuff in the legislative history --- in particular, the extended comparisons to the Betamax case in both houses --- which I'm not sure I wrote up in either of these documents. I wouldn't have a chance to incorporate either one before tonight, but they're easy to find; retrieve the debates from the Cryptome archive, and search for "Betamax". I'll post excerpts in a bit. > This is the denial of fair use; the insistence that only > "approved" uses are permitted specifically contradicts fair use's > _expectation_ that permissible uses will be un-approved. Fair use is > statutory authorization for uses such as parody that the copyright owner > would prefer to bar. > > I think this argument follows from the technical authorization arguments, > if they claim that authority is granted only through the use of a licensed > player of which the license requires it to accept this use control. The > studios are demanding the right to implement barriers impermeable to fair > use, which Congress didn't and couldn't grant. Basically my thread of argument in auth.html ... except that I give Dean Marks' explicit description of the scheme and the point of the scheme equal billing with the tech. (He comes out and says that it's for control of the player market --- you don't have to "deduce" it). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 12:09:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07967 for dvd-discuss-outgoing; Wed, 19 Jul 2000 12:09:26 -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 MAA07964 for ; Wed, 19 Jul 2000 12:09:25 -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:2.21) with ESMTP id MAA29321 for ; Wed, 19 Jul 2000 12:08:33 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA02436; Wed, 19 Jul 2000 12:08:32 -0400 (EDT) Date: Wed, 19 Jul 2000 12:08:32 -0400 (EDT) Message-Id: <200007191608.MAA02436@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Betamax in the legislative history Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From the Senate, first debate, Ashcroft (I've posted excerpts of this before, but the whole is worth reading): In discussing the anti-circumvention portion of the legislation, I think it is worth emphasizing that I could agree to support the bill's approach of outlawing certain devices because I was repeatedly assured that the device prohibitions in 1201(a)(2) and 1201(b) are aimed at so- called ``black boxes'' and not at legitimate consumer electronics and computer products that have substantial non-infringing uses. I specifically worked for and achieved changes to the bill to make sure that no court would misinterpret this bill as outlawing legitimate consumer electronics devices or computer hardware. As a result, neither section 1201(a)(2) nor section 1201(b) should be read as outlawing any device with substantial non-infringing uses, as per the tests provided in those sections. If history is a guide, however, someone may yet try to use this bill as a basis for initiating litigation to stop legitimate new products from coming to market. By proposing the addition of section 1201(d)(2) and (3), I have sought to make clear that any such effort to use the courts to block the introduction of new technology should be bound to fail. As my colleagues may recall, this wouldn't be the first time someone has tried to stop the advance of new technology. In the mid 1970s, for example, a lawsuit was filed in an effort to block the introduction of the Betamax video recorder. I think it useful to recall what the Supreme Court had to say in ruling for consumers and against two movie studies in that case: One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. As Missouri's Attorney General, I had the privilege to file a brief in the Supreme Court in support of the right of consumers to buy that first generation of VCRs. I want to make it clear that I did not come to Washington to vote for a bill that could be used to ban the next generation of recording equipment. I want to reassure consumers that nothing in the bill should be read to make it unlawful to produce and use the next generation of computers or VCRs or whatever future device will render one or the other of these familiar devices obsolete. Another important amendment was added that makes clear that this law does not mandate any particular selection of components for the design of any technology. I was concerned that this legislation could be interpreted as a mandate on product manufacturers to design products so as to respond affirmatively to effective technical protection measures available in the marketplace. In response to this concern I was pleased to offer an amendment, with the support of both the Chairman and the Ranking Member of the Committee, to avoid the unintended effect of having design requirements imposed on product and component manufacturers, which would have a dampening effect on innovation, and on the research and development of new products. Accordingly, my amendment clarified that product designers need not design consumer electronics, telecommunications, or computing products, nor design and select parts or components for such products, in order to respond to particular technological protection measures. This amendment reflects my belief that product manufacturers should remain free to design and produce consumer electronics, telecommunications and computing products without the threat of incurring liability for their design decisions under this legislation. Nothing could cause greater disaster and a swifter downfall of our vibrant technology sector than to have the federal government dictating the design of computer chips or mother boards. 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 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 [[Page S4891]] 12 of the copyright law as added by this bill. >From the House, in the final debate on the Conference Committee bill, Rep. Klug: Both of these changes share one other important characteristic. Given the language contained in the Judiciary Committee's original bill, specifically sections 1201(a)(1), (a)(2), and (b)(1), there was great reason to believe that one of the fundamental laws of copyright was about to be overruled. That law, known as Sony Corporation of America v. Universal Studios, 464 U.S. 417 (198), reinforced the centuries-old concept of fair use. It also validated the legitimacy of products if capable of substantial non-infringing uses. The original version of the legislation threatened this standard, imposing liability on device manufacturers if the product is of limited commercial value. Now, I'm not a lawyer, but it seems irrational to me to change the standard without at least some modest showing that such a change is necessary. And, changing the standard, in a very real sense, threatens the very innovation and ingenuity that have been the hallmark of American products, both hardware and content-related. I'm very pleased that the conferees have meaningfully clarified that the Sony decision remains valid law. They have also successfully limited the interpretation of Sections 1201(a)(2) and (b)(1), the ``device'' provisions, to outlaw only those products having no legitimate purpose. As the conference report makes clear, these two sections now must be read to support, not stifle, staple articles of commerce, such as consumer electronics, telecommunications, and computer products used by businesses and consumers everyday, for perfectly legitimate purposes. Finally, the conferees included specific language allowing product manufacturers to adjust their products to accommodate adverse effects caused by technological protection measures and copyright management information systems. These measures could have the effect of materially degrading authorized performances or displays of works, or causing recurring appreciably adverse effects. But, there was real fear in the manufacturing and retail communities of liability for circumvention if they took steps to mitigate the problem. I also felt particularly strong that consumers have the right to expect that the products they purchase will live up to their expectations and the retailing hype. So, the Commerce Committee faced another balancing act--preserving the value of the creative community while also affording consumers some basic protections and guarantees. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 12:10:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA07983 for dvd-discuss-outgoing; Wed, 19 Jul 2000 12:10:10 -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 MAA07977 for ; Wed, 19 Jul 2000 12:10:05 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CSTM>; Wed, 19 Jul 2000 09:08:59 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D19@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] musings Date: Wed, 19 Jul 2000 09:08:58 -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 I'm not going to address the media shifting argument, but I will talk about what you said earlier about requireing the proper DVD -and- a CSS licensed player. There are many programs even now that require the original source (usually CD) in the drive for authentication ... but what is the purpose of requireing the CSS licensed player except market control of the DVD manufacturers? You can verify that the proper DVD is in the drive whether or not CSS is involved, CSS again adds nothing to the equation. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Chris Moseng [mailto:moseng@mninter.net] > Sent: Tuesday, July 18, 2000 7:59 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] musings > > > >From the deposition of Chris DiBona: > > But what I want to understand is you talk about using the Mediamatics > DVD playing program and running a movie under the Windows operating > system, and then you describe in Paragraph 17 the fact that > one can copy > data off of the DVD disk and use the Mediamatics program as a "DeCSS > equivalent." > > 0-0-0-0 > > Errr. I hadn't even thought of trying this! Has this been common > knowledge and I'm just slow, or was this a genuine revelation? > > Basically, he ran his CSS-licensed software, and while it had > the player > unlocked it allowed him to copy the scrambled VOBs. Geez, I can't > believe I didn't think of this before. My brain must be in backwards. > > So I ran my Creative Labs Encore software with Blade Runner in the > drive. I copied a "scrambled" 89Meg VOB off the drive using windows > explorer with no problem. I also used DeCSS to copy the file, too. > > Upon playback, as long as the correct DVD was in the drive, the > scrambled file played back fine. When I took the BR DVD out, the > allegedly descrambled file still played fine, but the scrambled one > surprised me: It played back distorted sound, but no video. > > Hmmm. Well, ignoring the surprising result of having some playback > functionality... > > I have had an epiphany regarding the plaintiff's case. It may > or may not > help the group. They have a problem with unlimited copying and > distribution of the unscrambled files, however, they may not > take issue > with the uninhibited distribution of the encrypted files... Why this > didn't occur to me before, I don't know. > > *If the encrypted files only operate correctly in the presence of a > CSS-compliant device and that it certifies a DVD is present, *this may > be their argument for effective access control. Not access to the > encrypted work, or copyability the unencrypted work, but > access to view > a CSS encrypted work is only granted in proper CSS > implementations when > the DVD is present. Thus CSS compliance hinges not on specific license > terms with the DVDCCA (except making unencrypted VOBs available?), but > on the CSS-compliant device's reliance on the presence of the DVD to > playback an encrypted work. > > So their argument will center not on the specific abilities of a > CSS-decrypting player in terms of copying and unencrypted file > availability, but in terms of the CSS-compliant device > ensuring that the > source (or indistinguishable, legitimate facsimilie) is used in > conjunction with the encrypted file. > > This specifically hinders the public's ability to make fair use, > specifically to media shift. Media shifting, in my view, implies that > the source is not available to ascertain the access rights of > the user. > I should be able to put my movie on my hard drive without needing the > DVD ever again. So what the studios have done is not tie access their > work to the playback device, but to the media itself. > > What do you make of this conundrum? Have I made any sense? > Was this all > ready covered? I just can't believe I hadn't explored this before. > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 12:23:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08442 for dvd-discuss-outgoing; Wed, 19 Jul 2000 12:23:54 -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 MAA08439 for ; Wed, 19 Jul 2000 12:23:53 -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:2.21) with ESMTP id MAA01405 for ; Wed, 19 Jul 2000 12:23:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id MAA09554; Wed, 19 Jul 2000 12:22:59 -0400 (EDT) Date: Wed, 19 Jul 2000 12:22:59 -0400 (EDT) Message-Id: <200007191622.MAA09554@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Betamax in the legislative history In-Reply-To: <200007191608.MAA02436@soggy-fibers.ai.mit.edu> References: <200007191608.MAA02436@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: One comment on my excerpts. When Ashcroft says: > If history is a guide, however, someone may yet try to use this bill > as a basis for initiating litigation to stop legitimate new products > from coming to market. By proposing the addition of section 1201(d)(2) > and (3), I have sought to make clear that any such effort to use the > courts to block the introduction of new technology should be bound to > fail. I believe he is referring to 1201(c)(2) and (3) of the final bill; IIRC, the Senate's 1201(c) was struck by the House. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 12:28:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA08812 for dvd-discuss-outgoing; Wed, 19 Jul 2000 12:28:32 -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 MAA08809 for ; Wed, 19 Jul 2000 12:28:30 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CS4R>; Wed, 19 Jul 2000 09:27:45 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D1C@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Betamax in the legislative history Date: Wed, 19 Jul 2000 09:27:43 -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 Aside from DeCSS, I seem to recall the from the depositions that the Ps also would consider that any unlicensed player (i.e. a dedicated hardware device the sole purpose of which was to play DVDs as opposed to a software implementation designed to run under a general purpose operating system) would also be illegal under 1201. Ashcroft's statement here directly counters that position. Whether the statement can be stretched far enough to cover the software implementations, I dunno. But the bit about not wanting to have the bill used to prevent competing devices from being brought to market would surely apply to dedicated players. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Wednesday, July 19, 2000 9:09 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Betamax in the legislative history > > > From the Senate, first debate, Ashcroft (I've posted excerpts of this > before, but the whole is worth reading): > > In discussing the anti-circumvention portion of the legislation, I > think it is worth emphasizing that I could agree to support > the bill's > approach of outlawing certain devices because I was > repeatedly assured > that the device prohibitions in 1201(a)(2) and 1201(b) are > aimed at so- > called ``black boxes'' and not at legitimate consumer > electronics and > computer products that have substantial non-infringing uses. I > specifically worked for and achieved changes to the bill to > make sure > that no court would misinterpret this bill as outlawing legitimate > consumer electronics devices or computer hardware. As a > result, neither > section 1201(a)(2) nor section 1201(b) should be read as > outlawing any > device with substantial non-infringing uses, as per the > tests provided > in those sections. > If history is a guide, however, someone may yet try to > use this bill > as a basis for initiating litigation to stop legitimate new products > from coming to market. By proposing the addition of section > 1201(d)(2) > and (3), I have sought to make clear that any such effort to use the > courts to block the introduction of new technology should > be bound to > fail. > As my colleagues may recall, this wouldn't be the first > time someone > has tried to stop the advance of new technology. In the mid > 1970s, for > example, a lawsuit was filed in an effort to block the > introduction of > the Betamax video recorder. I think it useful to recall what the > Supreme Court had to say in ruling for consumers and > against two movie > studies in that case: > > One may search the Copyright Act in vain for any sign that > the elected representatives of the millions of people who > watch television every day have made it unlawful to copy a > program for later viewing at home, or have enacted a flat > prohibition against the sale of machines that make such > copying possible. > > As Missouri's Attorney General, I had the privilege to > file a brief > in the Supreme Court in support of the right of consumers > to buy that > first generation of VCRs. I want to make it clear that I > did not come > to Washington to vote for a bill that could be used to ban the next > generation of recording equipment. I want to reassure consumers that > nothing in the bill should be read to make it unlawful to > produce and > use the next generation of computers or VCRs or whatever > future device > will render one or the other of these familiar devices obsolete. > Another important amendment was added that makes clear > that this law > does not mandate any particular selection of components for > the design > of any technology. I was concerned that this legislation could be > interpreted as a mandate on product manufacturers to design > products so > as to respond affirmatively to effective technical > protection measures > available in the marketplace. In response to this concern I > was pleased > to offer an amendment, with the support of both the Chairman and the > Ranking Member of the Committee, to avoid the unintended effect of > having design requirements imposed on product and component > manufacturers, which would have a dampening effect on > innovation, and > on the research and development of new products. Accordingly, my > amendment clarified that product designers need not design consumer > electronics, telecommunications, or computing products, nor > design and > select parts or components for such products, in order to respond to > particular technological protection measures. > This amendment reflects my belief that product > manufacturers should > remain free to design and produce consumer electronics, > telecommunications and computing products without the threat of > incurring liability for their design decisions under this > legislation. > Nothing could cause greater disaster and a swifter downfall of our > vibrant technology sector than to have the federal > government dictating > the design of computer chips or mother boards. 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 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 > > [[Page S4891]] > > 12 of the copyright law as added by this bill. > > From the House, in the final debate on the Conference Committee bill, > Rep. Klug: > > Both of these changes share one other important > characteristic. Given > the language contained in the Judiciary Committee's original bill, > specifically sections 1201(a)(1), (a)(2), and (b)(1), there > was great > reason to believe that one of the fundamental laws of copyright was > about to be overruled. That law, known as Sony Corporation > of America > v. Universal Studios, 464 U.S. 417 (198), reinforced the > centuries-old > concept of fair use. It also validated the legitimacy of products if > capable of substantial non-infringing uses. The original > version of the > legislation threatened this standard, imposing liability on device > manufacturers if the product is of limited commercial value. > Now, I'm not a lawyer, but it seems irrational to me to change the > standard without at least some modest showing that such a change is > necessary. And, changing the standard, in a very real > sense, threatens > the very innovation and ingenuity that have been the hallmark of > American products, both hardware and content-related. I'm > very pleased > that the conferees have meaningfully clarified that the > Sony decision > remains valid law. They have also successfully limited the > interpretation of Sections 1201(a)(2) and (b)(1), the ``device'' > provisions, to outlaw only those products having no > legitimate purpose. > As the conference report makes clear, these two sections now must be > read to support, not stifle, staple articles of commerce, such as > consumer electronics, telecommunications, and computer > products used by > businesses and consumers everyday, for perfectly legitimate > purposes. > Finally, the conferees included specific language allowing product > manufacturers to adjust their products to accommodate > adverse effects > caused by technological protection measures and copyright management > information systems. These measures could have the effect > of materially > degrading authorized performances or displays of works, or causing > recurring appreciably adverse effects. But, there was real > fear in the > manufacturing and retail communities of liability for > circumvention if > they took steps to mitigate the problem. I also felt particularly > strong that consumers have the right to expect that the > products they > purchase will live up to their expectations and the > retailing hype. So, > the Commerce Committee faced another balancing act--preserving the > value of the creative community while also affording consumers some > basic protections and guarantees. > > rst > > > > > > > > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 13:03:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09740 for dvd-discuss-outgoing; Wed, 19 Jul 2000 13:03:37 -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 NAA09737 for ; Wed, 19 Jul 2000 13:03:31 -0400 Received: from ip109.bedford8.ma.pub-ip.psi.net ([38.32.78.109]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13ExF0-0004U4-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 13:02:38 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] another article (NY Law Journal) Date: Wed, 19 Jul 2000 12:56:29 -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 NAA09738 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hacker Threat Decried at DVD Trial http://www.nylj.com/stories/00/07/071800a2.htm __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 13:05:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA09831 for dvd-discuss-outgoing; Wed, 19 Jul 2000 13:05:15 -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 NAA09828 for ; Wed, 19 Jul 2000 13:05:15 -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:2.21) with ESMTP id NAA07221 for ; Wed, 19 Jul 2000 13:04:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA09723; Wed, 19 Jul 2000 13:04:22 -0400 (EDT) Date: Wed, 19 Jul 2000 13:04:22 -0400 (EDT) Message-Id: <200007191704.NAA09723@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Betamax in the legislative history In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D1C@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D1C@mail2.onetouch.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > Whether the statement can be stretched far enough > to cover the software implementations, I dunno. But > the bit about not wanting to have the bill used to > prevent competing devices from being brought to market > would surely apply to dedicated players. Well, according to Ashcroft, the P's can't claim that such a software player is circumvention just because it exposes the content to the possibility of duplication, provided it serves some other legitimate purpose: 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 [[Page S4891]] 12 of the copyright law as added by this bill. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 13:43:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11343 for dvd-discuss-outgoing; Wed, 19 Jul 2000 13:43:11 -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 NAA11340 for ; Wed, 19 Jul 2000 13:43:09 -0400 Message-ID: <20000719174137.6262.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 19 Jul 2000 10:41:37 PDT Date: Wed, 19 Jul 2000 10:41:37 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] When did DivX become available 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 One thing that bugs me about the whole DeCSS + DivX = MP3 for movies stuff is that I really doubt DivX was on anybody's mind back in October when DeCSS was first released. I also doubt that 2600 posted DeCSS with any knowledge that DivX was a medium of choice for movie piracy. Can anybody shed some light on when DivX was created and when it "hit the scene"? If 2600 stopped posting DeCSS before DivX became the popular format, then why is this really relevent to 2600's alleged crime? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 13:47:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA11465 for dvd-discuss-outgoing; Wed, 19 Jul 2000 13:47:15 -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 NAA11462 for ; Wed, 19 Jul 2000 13:47:14 -0400 Received: from ip109.bedford8.ma.pub-ip.psi.net ([38.32.78.109]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13ExvG-0007I6-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 13:46:18 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] another article (The Standard) Date: Wed, 19 Jul 2000 13:40:10 -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 NAA11463 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The Napsterization of Hollywood http://www.thestandard.com/article/display/0,1151,16905,00.html __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 15:27:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA12799 for dvd-discuss-outgoing; Wed, 19 Jul 2000 15:27:12 -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 PAA12796 for ; Wed, 19 Jul 2000 15:27:11 -0400 Received: from ip231.bedford2.ma.pub-ip.psi.net ([38.32.10.231]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13EzTz-0001LT-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 15:26:15 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available Date: Wed, 19 Jul 2000 15:20:07 -0400 Message-ID: References: <20000719174137.6262.qmail@web512.mail.yahoo.com> In-Reply-To: <20000719174137.6262.qmail@web512.mail.yahoo.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 PAA12797 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 19 Jul 2000 10:41:37 -0700 (PDT), Bryan Taylor wrote: > >One thing that bugs me about the whole DeCSS + DivX = MP3 for movies >stuff is that I really doubt DivX was on anybody's mind back in October >when DeCSS was first released. I also doubt that 2600 posted DeCSS with >any knowledge that DivX was a medium of choice for movie piracy. > >Can anybody shed some light on when DivX was created and when it "hit >the scene"? http://divx.ctw.cc/index_old.html It looks like v 3 was available Jan 1, so it probably was around during the period in question, even if only a few people had heard about it.. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 16:22:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16490 for dvd-discuss-outgoing; Wed, 19 Jul 2000 16:22:41 -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 QAA16487 for ; Wed, 19 Jul 2000 16:22:35 -0400 Message-ID: <20000719202104.11172.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Wed, 19 Jul 2000 13:21:04 PDT Date: Wed, 19 Jul 2000 13:21:04 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] When did DivX become available 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 --- Bryan Taylor wrote: I'll answer my own post, after reading Schumann's cross > Can anybody shed some light on when DivX was created and when it "hit > the scene"? Well, in his testimony Schumann answers this question. From the Tuesday trial transcript p311: 6 Q. Do you know if the MPA ever made any investigation -- I 7 don't think this is redundant, but I may have asked it 8 before -- of any of the people in those logs and whether or 9 not they had ever truly used DeCSS to download a film? 10 A. I'm sorry, DeCSS doesn't download film. 11 Q. DeCSS -- excuse me -- and then DiVX a film? 12 A. For the period covered by these logs in this report, to my 13 knowledge, DiVX was not in existence. It certainly wasn't 14 referenced by that name in these logs. > If 2600 stopped posting DeCSS before DivX became the popular format, > then why is this really relevent to 2600's alleged crime? I think this is a VERY important point. The DeCSS + DiVX stuff is totally irrelevant to anything that 2600 did. When they were posting DeCSS, DiVX wasn't around. Thus they must have been posting it for some other reason. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 16:31:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA16699 for dvd-discuss-outgoing; Wed, 19 Jul 2000 16:31:43 -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 QAA16695 for ; Wed, 19 Jul 2000 16:31:41 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id QAA05241 for ; Wed, 19 Jul 2000 16:30:48 -0400 (EDT) Date: Wed, 19 Jul 2000 16:30:48 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 19 Jul 2000, Ron Gustavson wrote: > http://divx.ctw.cc/index_old.html > It looks like v 3 was available Jan 1, so it probably was > around during the period in question, even if only a few > people had heard about it.. > Version 3a was available by Dec 3 1999 see: http://www.google.com/search?q=cache:www.saturn.spaceports.com/~dvdsoft/news_d-j.html+divx+gej&hl=en From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 16:42:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17239 for dvd-discuss-outgoing; Wed, 19 Jul 2000 16:42:53 -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 QAA17236 for ; Wed, 19 Jul 2000 16:42:52 -0400 Received: from ip231.bedford2.ma.pub-ip.psi.net ([38.32.10.231]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13F0fH-0002nS-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 16:41:59 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available Date: Wed, 19 Jul 2000 16:35:51 -0400 Message-ID: References: <20000719202104.11172.qmail@web510.mail.yahoo.com> In-Reply-To: <20000719202104.11172.qmail@web510.mail.yahoo.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 QAA17237 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 19 Jul 2000 13:21:04 -0700 (PDT), Bryan Taylor wrote: > 12 A. For the period covered by these logs in this report, to my > 13 knowledge, DiVX was not in existence. It certainly wasn't > 14 referenced by that name in these logs. > >> If 2600 stopped posting DeCSS before DivX became the popular format, >> then why is this really relevent to 2600's alleged crime? > >I think this is a VERY important point. The DeCSS + DiVX stuff is >totally irrelevant to anything that 2600 did. When they were posting >DeCSS, DiVX wasn't around. Thus they must have been posting it for some >other reason. I don't think we should rely on Schumann. Searching Deja.com, the earliest reference I can come up with is 12/18/99-- (you may have to repair this URL) http://x58.deja.com/[ST_rn=ps]/getdoc.xp?AN=562310872&CONTEXT=964037990.1057095777&hitnum=3 __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 16:47:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA17447 for dvd-discuss-outgoing; Wed, 19 Jul 2000 16:47:27 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA17444 for ; Wed, 19 Jul 2000 16:47:26 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id QAA01450; Wed, 19 Jul 2000 16:47:23 -0400 Message-ID: <397613DB.1982C40A@mit.edu> Date: Wed, 19 Jul 2000 16:47:23 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available References: <20000719202104.11172.qmail@web510.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: > I think this is a VERY important point. The DeCSS + DiVX stuff is > totally irrelevant to anything that 2600 did. When they were posting > DeCSS, DiVX wasn't around. Thus they must have been posting it for some > other reason. > Along these lines Garbus tried to make a very important point yesterday: DeCSS has nothing to do with piracy because when DeCSS was created there were already several other (and _still_ better) piracy tools available. Therefore, DeCSS must have been created for some non-piracy, non-stealing reason. Otherwise, why would anyone invest the time and effort needed to create DeCSS? Especially considering how unfriendly DeCSS has turned out to be for piracy. This points directly at a non-piracy (and arguably non-circumvention) purpose for DeCSS. At least Kaplan is letting him argue that the existence of other piracy programs is relevant even if he doesn't seem to understand why. Kaplan also seems to be equating DeCSS with _patent infringement_. I don't know whether this is good or bad for us. It seems bad because the patent interpretation is the one which lets DeCSS be banned, but it is good because it opens the door to attacking the constitutionality of 1201 since it is granting process monopolies that are not patents and do not expire. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:03:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA17883 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:03:23 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA17880 for ; Wed, 19 Jul 2000 17:03:21 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA01512; Wed, 19 Jul 2000 17:03:23 -0400 Message-ID: <3976179B.363E2F98@mit.edu> Date: Wed, 19 Jul 2000 17:03:23 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Wine References: <3975AC1F.376B10E8@mninter.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 Chris Moseng wrote: > > Has anybody tried to run DeCSS under Wine? I don't have it installed. In > fact, wouldn't Wine be a good project to bring up? > > > Q. Does DeCSS run under the Microsoft Windows operating system? > > > Schumann: > > A. Absolutely. In fact, that's the only place that the DeCSS > executable works. Apparently Johansen can testify that DeCSS will work under WINE, (see http://www.wired.com/news/politics/0,1283,33925,00.html) as long as the defense remembers to ask him about this. He is being called as a limited witness and he's leaving the country so we have to be sure to do this now. Personally, I'd wonder about DeCSS working under WINE. I presume you'd need to be sending raw commands to the DVD drive controller and using a Windows DVD driver because DeCSS authenticates to the drive. We could also ask someone from the WINE project to comment on the feasibility of running DeCSS under WINE if that seems useful. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:10:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18016 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:10:37 -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 RAA18013 for ; Wed, 19 Jul 2000 17:10:35 -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:2.21) with ESMTP id RAA06560 for ; Wed, 19 Jul 2000 17:09:43 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA14872; Wed, 19 Jul 2000 17:09:43 -0400 (EDT) Date: Wed, 19 Jul 2000 17:09:43 -0400 (EDT) Message-Id: <200007192109.RAA14872@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available In-Reply-To: <397613DB.1982C40A@mit.edu> References: <20000719202104.11172.qmail@web510.mail.yahoo.com> <397613DB.1982C40A@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > At least Kaplan is letting him argue that the existence of > other piracy programs is relevant even if he doesn't seem > to understand why. Kaplan also seems to be equating DeCSS > with _patent infringement_. I don't know whether this is good > or bad for us. It seems bad because the patent interpretation > is the one which lets DeCSS be banned, but it is good because > it opens the door to attacking the constitutionality of 1201 > since it is granting process monopolies that are not patents > and do not expire. Exactly... it means he believes, with the plaintiffs, that 1201(a) gives them a patent-like monopoly over any "effective access control" process applied to their works. In order to keep that from sounding completely ridiculous, they go on to say that this only applies to *access control* processes, which they describe as "encryption processes". Never mind that the statutory definition of "effective access control" does not mention encryption at all, and the statutory definition of "circumvention" says that it can involve decryption, but could also be any other technique which defeats an effective access control. This is the second of my "problems with the plaintiff's analysis" in auth.html; the list so far is: *) Pretextual, false encryption *) Encryption not required for access control; any process could be regulated *) Authority not granted to the party performing the ``decryption'' *) Access controlled is access to a market, not access to a work *) Inconsistent with Congressional intent *) Inconsistent with Constitutional principles *) These problems inhere only to the plaintiffs' reading http://www.ai.mit.edu/people/rst/dmca/auth/auth.html if you'd like to see more on any of these. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:13:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18074 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:13:20 -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 RAA18070 for ; Wed, 19 Jul 2000 17:13:14 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CTHC>; Wed, 19 Jul 2000 14:12:32 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D1F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] When did DivX become available Date: Wed, 19 Jul 2000 14:12:31 -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 How is Kaplan equating DeCSS with patent infringement when CSS is not patented? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Ravi Nanavati [mailto:ravi_n@mit.edu] ... > > At least Kaplan is letting him argue that the existence of > other piracy programs is relevant even if he doesn't seem > to understand why. Kaplan also seems to be equating DeCSS > with _patent infringement_. I don't know whether this is good > or bad for us. It seems bad because the patent interpretation > is the one which lets DeCSS be banned, but it is good because > it opens the door to attacking the constitutionality of 1201 > since it is granting process monopolies that are not patents > and do not expire. > > - Ravi Nanavati > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:22:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18179 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:22:21 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA18176 for ; Wed, 19 Jul 2000 17:22:19 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13F1HK-0003hl-00; Wed, 19 Jul 2000 14:21:18 -0700 Date: Wed, 19 Jul 2000 14:21:18 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Wine Message-ID: <20000719142118.L594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <3975AC1F.376B10E8@mninter.net> <3976179B.363E2F98@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <3976179B.363E2F98@mit.edu>; from ravi_n@mit.edu on Wed, Jul 19, 2000 at 05:03:23PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > Chris Moseng wrote: > > > > Has anybody tried to run DeCSS under Wine? I don't have it installed. In > > fact, wouldn't Wine be a good project to bring up? > > > > > Q. Does DeCSS run under the Microsoft Windows operating system? > > > > > Schumann: > > > A. Absolutely. In fact, that's the only place that the DeCSS > executable works. > > Apparently Johansen can testify that DeCSS will work under WINE, > (see http://www.wired.com/news/politics/0,1283,33925,00.html) > as long as the defense remembers to ask him about this. He is > being called as a limited witness and he's leaving the country > so we have to be sure to do this now. Personally, I'd wonder about > DeCSS working under WINE. I presume you'd need to be sending raw > commands to the DVD drive controller and using a Windows DVD > driver because DeCSS authenticates to the drive. We could also > ask someone from the WINE project to comment on the feasibility > of running DeCSS under WINE if that seems useful. It's been noted on Advogato recently that the Xing DVD player seems to work under WINE now. -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:27:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18336 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:27:15 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA18333 for ; Wed, 19 Jul 2000 17:27:14 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA01615; Wed, 19 Jul 2000 17:27:16 -0400 Message-ID: <39761D34.2E21E495@mit.edu> Date: Wed, 19 Jul 2000 17:27:16 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available References: <5A8391CA2D9ED311AFAA080009D982B10B1D1F@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > How is Kaplan equating DeCSS with patent infringement > when CSS is not patented? > Here's the chunk of the transcript: (I apologize for the length, but the context is needed to make this clear) THE COURT: How does the preexistence in that and the 16 fact of other decryption software prove what you just said? 17 MR. GARBUS: It relates to two separate things. 18 First of all, it relates to the question of harm, but 19 what it also proves is that these other techniques were 20 available and were being used, let's say, to rip off films 21 that DeCSS, that if you wanted to just go copy and pirate 22 films in any way, you had all these other alternatives, that 23 DeCSS was constructed solely, primarily, for use on the Linux 24 machine and what we think the LiViD logs show is that now you 25 may conclude that its piracy or copying, whether or not it's 343 1 on a Linux machine or not. 2 You may conclude that that portion of our argument is 3 invalid and that whatever we say about Sony Betamax, etc., is 4 irrelevant and in view of the DMCA. 5 But that's the argument that we make. If we have a 6 stipulation as to it, we can save a lot of time. 7 MR. GOLD: Your Honor -- 8 THE COURT: Just a minute, Mr. Gold. 9 It seems to me, I mean, you have strung together a 10 whole series of different arguments in your response and maybe 11 there's an appropriate relationship that I'm not seeing, but 12 what it sounds like to me is that you are saying transposing 13 this case now into the context, for example, of a patent 14 infringement that it somehow would be a defense to 15 infringement of a patent that other people were doing it 16 first. 17 Now, why isn't that line of logic perfectly 18 applicable here? 19 MR. GARBUS: It is correct, if you interpret or it 20 may be correct or is arguably correct that if you interpret 21 the use of the DeCSS for the Linux machine, then -- and you 22 equate that with copying and selling on the street and doing 23 it illegally, we don't. We say that DeCSS was made solely 24 by -- for Linux. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 17:50:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA18603 for dvd-discuss-outgoing; Wed, 19 Jul 2000 17:50:29 -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 RAA18600 for ; Wed, 19 Jul 2000 17:50:28 -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:2.21) with ESMTP id RAA10862 for ; Wed, 19 Jul 2000 17:49:36 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA15065; Wed, 19 Jul 2000 17:49:35 -0400 (EDT) Date: Wed, 19 Jul 2000 17:49:35 -0400 (EDT) Message-Id: <200007192149.RAA15065@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available In-Reply-To: <39761D34.2E21E495@mit.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1D1F@mail2.onetouch.com> <39761D34.2E21E495@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes (quoting court transcripts): > [Garbus:] > 2 You may conclude that that portion of our argument is > 3 invalid and that whatever we say about Sony Betamax, etc., is > 4 irrelevant and in view of the DMCA. Comment #1: The legislators thought Betamax was relevant; they went out of their way to preserve it (or try to). If Garbus hasn't seen the excerpts I posted yet, they might make interesting reading for him --- not that he doesn't have other uses for his time. > 8 THE COURT: Just a minute, Mr. Gold. > 9 It seems to me, I mean, you have strung together a > 10 whole series of different arguments in your response and maybe > 11 there's an appropriate relationship that I'm not seeing, but > 12 what it sounds like to me is that you are saying transposing > 13 this case now into the context, for example, of a patent > 14 infringement that it somehow would be a defense to > 15 infringement of a patent that other people were doing it > 16 first. Comment #2: Hmmm... the more I think about this, the less clear it gets. For one thing, I thought that "other people were doing it first" was a defense to trademark infringement, and could affect damage awards in copyright infringement, but had no effect on patent infringement. But IANAL. This did look to me at first as if he thought 1201 granted patent-like rights, but on further reflection, it's just weird. rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 18:03:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18767 for dvd-discuss-outgoing; Wed, 19 Jul 2000 18:03:28 -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 SAA18764 for ; Wed, 19 Jul 2000 18:03:27 -0400 Received: from jy01 (user-2inig8c.dialup.mindspring.com [165.121.65.12]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id SAA20302 for ; Wed, 19 Jul 2000 18:02:34 -0400 (EDT) Message-Id: <200007192202.SAA20302@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 19 Jul 2000 17:58:08 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] A (Live)Note on the Trial Transcripts In-Reply-To: <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1> References: <20000719103858.A9888@server1.cluebot.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 Thanks to Jim Tyre and another informant we took action on getting live feed of the court proceedings. LiveNote is indeed used by the court, and we submitted a letter today to Kaplan asking for permission to bring in a laptop to connect to the reporter's equipment (after consulting with the Court Reporter Office which said no problem, install LiveNote, pay us the fee and we'll rig a dongle on you box with a cable to the reporter.) Kaplan answered our request after lunch in open court: He is reluctant to grant the hookup until assured that it will not allow access to his computer and the Federal Judicial Network to which he is also connected, which strictly prohibits outside access. He promised to pursue the matter and announce his decision. If it is technically possible to protect against unauthorized access to the court's closed systems then maybe. This is a paraphrase of a transcript readback by the court deputy -- I missed the special moment due to the defendant's indolence at lunch. We learned from LiveNote's and other legal service sites that these arrangements are fairly common. You can get livefeed over the Internet, too, even for depositions. But not from SDNY, which provides only a direct cable connection at the moment. If we can arrange this we've been told it will be a first, so maybe Kaplan will grant it for that reason. If granted what we will get in the courtroom or nearby is the unofficial raw feed from the reporter, and have been asked by the Court Reporter Office to use it only for reporting, not posting on the Internet -- that should be only the official copy to avoid misattribution. The official copy is available by e-mail or disk for $1 a page at the end of the day -- which is what the parties now get. The SDNY Court Reporter Office telephone: 212-805-0300. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 18:14:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18906 for dvd-discuss-outgoing; Wed, 19 Jul 2000 18:14:54 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA18901 for ; Wed, 19 Jul 2000 18:14:52 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id SAA01779; Wed, 19 Jul 2000 18:14:54 -0400 Message-ID: <3976285E.920A12E5@mit.edu> Date: Wed, 19 Jul 2000 18:14:54 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available References: <5A8391CA2D9ED311AFAA080009D982B10B1D1F@mail2.onetouch.com> <39761D34.2E21E495@mit.edu> <200007192149.RAA15065@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: > > Ravi Nanavati writes (quoting court transcripts): > > > [Garbus:] > > 2 You may conclude that that portion of our argument is > > 3 invalid and that whatever we say about Sony Betamax, etc., is > > 4 irrelevant and in view of the DMCA. > > Comment #1: The legislators thought Betamax was relevant; they went > out of their way to preserve it (or try to). If Garbus hasn't seen > the excerpts I posted yet, they might make interesting reading for him > --- not that he doesn't have other uses for his time. > > > 8 THE COURT: Just a minute, Mr. Gold. > > 9 It seems to me, I mean, you have strung together a > > 10 whole series of different arguments in your response and maybe > > 11 there's an appropriate relationship that I'm not seeing, but > > 12 what it sounds like to me is that you are saying transposing > > 13 this case now into the context, for example, of a patent > > 14 infringement that it somehow would be a defense to > > 15 infringement of a patent that other people were doing it > > 16 first. 17 Now, why isn't that line of logic perfectly 18 applicable here? > > Comment #2: Hmmm... the more I think about this, the less clear it > gets. For one thing, I thought that "other people were doing it > first" was a defense to trademark infringement, and could affect > damage awards in copyright infringement, but had no effect on patent > infringement. But IANAL. > > This did look to me at first as if he thought 1201 granted patent-like > rights, but on further reflection, it's just weird. > > rst The lines (17-18) that you didn't include are what make me think Kaplan is conceptualizing DeCSS as patent infringement. After this they go back and forth about harm, and I'm not sure how that relates. Harm must have at least some relevance in a patent infringement case since damages awarded must depend on the harm of the infringing, but IANAL so I don't know how relevant it is. I would not be surprised to discover that proven infringement carried with it the presumption of some harm (and more harm just increases damages). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 18:14:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA18912 for dvd-discuss-outgoing; Wed, 19 Jul 2000 18:14:55 -0400 Received: from ogopogo.flash.net (ogopogo.flash.net [209.30.2.14]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA18905 for ; Wed, 19 Jul 2000 18:14:53 -0400 Received: from debian.org (p229-42.atnt5.dialup.ftw1.flash.net [209.30.229.42]) by ogopogo.flash.net (8.9.3/Pro-8.9.3) with ESMTP id RAA06853 for ; Wed, 19 Jul 2000 17:14:00 -0500 (CDT) Message-ID: <397629E7.AD1E136D@debian.org> Date: Wed, 19 Jul 2000 22:21:27 +0000 From: "Matthew R. Pavlovich" X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A (Live)Note on the Trial Transcripts References: <20000719103858.A9888@server1.cluebot.com> <200007192202.SAA20302@maynard.mail.mindspring.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 Nice. MRP John Young wrote: > Thanks to Jim Tyre and another informant we took action on > getting live feed of the court proceedings. LiveNote is indeed > used by the court, and we submitted a letter today to Kaplan > asking for permission to bring in a laptop to connect to the > reporter's equipment (after consulting with the Court Reporter > Office which said no problem, install LiveNote, pay us the fee > and we'll rig a dongle on you box with a cable to the reporter.) > > Kaplan answered our request after lunch in open court: > He is reluctant to grant the hookup until assured that it will > not allow access to his computer and the Federal Judicial > Network to which he is also connected, which strictly prohibits > outside access. He promised to pursue the matter and > announce his decision. If it is technically possible to protect > against unauthorized access to the court's closed systems > then maybe. > > This is a paraphrase of a transcript readback by the court deputy > -- I missed the special moment due to the defendant's indolence > at lunch. > > We learned from LiveNote's and other legal service sites that > these arrangements are fairly common. You can get livefeed > over the Internet, too, even for depositions. But not from > SDNY, which provides only a direct cable connection at the > moment. > > If we can arrange this we've been told it will be a first, so > maybe Kaplan will grant it for that reason. If granted what > we will get in the courtroom or nearby is the unofficial raw > feed from the reporter, and have been asked by the Court > Reporter Office to use it only for reporting, not posting on the > Internet -- that should be only the official copy to avoid > misattribution. The official copy is available by e-mail or disk > for $1 a page at the end of the day -- which is what the parties > now get. > > The SDNY Court Reporter Office telephone: 212-805-0300. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 18:20:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA19041 for dvd-discuss-outgoing; Wed, 19 Jul 2000 18:20:21 -0400 Received: from imo-r12.mx.aol.com (imo-r12.mx.aol.com [152.163.225.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA19038 for ; Wed, 19 Jul 2000 18:20:20 -0400 From: MGarbus@aol.com Received: from MGarbus@aol.com by imo-r12.mx.aol.com (mail_out_v27.12.) id x.8.7f32403 (3927) for ; Wed, 19 Jul 2000 18:18:50 -0400 (EDT) Message-ID: <8.7f32403.26a78349@aol.com> Date: Wed, 19 Jul 2000 18:18:49 EDT Subject: [dvd-discuss] Re: [dvd-announce] Openlaw updates from NY and California To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: AOL 5.0 for Windows sub 108 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I am not sure why I am receiving these letters. I am not a lawyer. I am a 71 year old woman with the same last name as Martin Garbus...no relation. If you are trying to reach him, you need to find out what service he uses, because it is not AOL. Please take me off your mailing list. Mary Garbus From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 19:17:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20195 for dvd-discuss-outgoing; Wed, 19 Jul 2000 19:17:05 -0400 Received: from tomts6-srv.bellnexxia.net (smtp.bellnexxia.net [209.226.175.26]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20192 for ; Wed, 19 Jul 2000 19:17:03 -0400 Received: from sympatico.ca ([206.172.235.9]) by tomts6-srv.bellnexxia.net (InterMail vM.4.01.03.00 201-229-121) with ESMTP id <20000719231611.NNPU5823.tomts6-srv.bellnexxia.net@sympatico.ca> for ; Wed, 19 Jul 2000 19:16:11 -0400 Message-ID: <3976372D.847EAF70@sympatico.ca> Date: Wed, 19 Jul 2000 19:18:05 -0400 From: Ian Hay Organization: Society for the Preservation of the Indignant Rant X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.0.35 i586) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: [dvd-announce] Openlaw updates from NY and California References: <8.7f32403.26a78349@aol.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 MGarbus@aol.com wrote: > > I am not sure why I am receiving these letters. I am not a lawyer. I am a > 71 year old woman with the same last name as Martin Garbus...no relation. If > you are trying to reach him, you need to find out what service he uses, > because it is not AOL. Please take me off your mailing list. Mary Garbus This is the second time this poor woman has asked to be removed from the list. It is likely that she is talking about the dvd-announce list (given the subject line, and the timing of her pleas). Could someone at openlaw, or otherwise with the wherewithal to do so, remove this person (mgarbus@aol.com) from the dvd-announce list and any other list she may be on. I think it's obvious that she didn't subscribe herself, so it would be unreasonable to expect her to figure out how to unsubscribe. There must be a way to do it manually. I. -- ____ | | Ian R. Hay |____| Toronto, Canada From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 19:42:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA21910 for dvd-discuss-outgoing; Wed, 19 Jul 2000 19:42:15 -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 TAA21907 for ; Wed, 19 Jul 2000 19:42:14 -0400 Received: from jy01 (user-2inig8c.dialup.mindspring.com [165.121.65.12]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA15563 for ; Wed, 19 Jul 2000 19:41:21 -0400 (EDT) Message-Id: <200007192341.TAA15563@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 19 Jul 2000 19:37:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Kaplan Recusal Docs In-Reply-To: References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Judge Kaplan's astonishing 51-page opinion of July 17 denying 2600's motion for his recusal: http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07113.PDF You've got to read that. What a revelation. Then today a further order on the recusal Kaplan issued which cites today's testimony for relevance to the recusal grounds and his reason for denial: http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07209.PDF Attached to it is excepted testimony which appears to be raw feed from the court reporter, uncorrected errors and all, and presents a bench conference where rather intense discussion took place. Good stuff which helps to understand why Kaplan and Garbus were really gut-knifing each other today. Still, the day ended on an upbeat demolition of a heavily-credentialled MPAA witness by Garbus, a witness even Kaplan said he could not believe was called by the plaintiff to expertly overstate badly (for $800/hr) what any fool could easily see. And the mystery young girl previously featured as sitting near Judge Kaplan? She was there again today and I got an exlusive interview. She is Marian, a seventh-grader who is interning to learn about the judicial system. She said she is not a relative of anyone. She is composed, articulate, swell-mannered, and had no time to waste on loveblind fools like me. Broke my heart. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 20:05:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22149 for dvd-discuss-outgoing; Wed, 19 Jul 2000 20:05:20 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22146 for ; Wed, 19 Jul 2000 20:05:19 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3PZ5B>; Wed, 19 Jul 2000 20:09:14 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E67@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Kaplan Recusal Docs Date: Wed, 19 Jul 2000 20:09:13 -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 Fascinating. Too bad the judge would never allow it, but it would sure be entertaining to explore under oath the relationship between the movie studios and the DMCA. I say this because the transcript suggests that the studios considered getting legislation to pass part of their strategy. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 20:15:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22264 for dvd-discuss-outgoing; Wed, 19 Jul 2000 20:15:16 -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 UAA22261 for ; Wed, 19 Jul 2000 20:15:14 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CTQL>; Wed, 19 Jul 2000 17:14:33 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D21@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] When did DivX become available Date: Wed, 19 Jul 2000 17:14:32 -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 way I read that is Kaplan using a patent infringement context to illustrate the weakness of an argument ... kinda like your mother saying "if all your friends were jumping off a bridge, would you do that too?" your mother doesn't mean that all your friends actually -are- jumping off the bridge, and I don't think Kaplan was implying that CSS enjoys patent protections. I think he was just asking "are you saying that it's ok to do (something bad) just because other people are?" and using patent infringement as context for the question. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Ravi Nanavati [mailto:ravi_n@mit.edu] > Sent: Wednesday, July 19, 2000 2:27 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] When did DivX become available > > > Richard Hartman wrote: > > > > How is Kaplan equating DeCSS with patent infringement > > when CSS is not patented? > > > > Here's the chunk of the transcript: > (I apologize for the length, but the context is needed to > make this clear) > > THE COURT: How does the preexistence in that and the > > 16 fact of other decryption software prove what you just said? > > 17 MR. GARBUS: It relates to two separate things. > > 18 First of all, it relates to the question of harm, but > > 19 what it also proves is that these other techniques were > > 20 available and were being used, let's say, to rip off films > > 21 that DeCSS, that if you wanted to just go copy and pirate > > 22 films in any way, you had all these other alternatives, that > > 23 DeCSS was constructed solely, primarily, for use on the Linux > > 24 machine and what we think the LiViD logs show is that now you > > 25 may conclude that its piracy or copying, whether or not it's > > > > 343 > > > > 1 on a Linux machine or not. > > 2 You may conclude that that portion of our argument is > > 3 invalid and that whatever we say about Sony Betamax, etc., is > > 4 irrelevant and in view of the DMCA. > > 5 But that's the argument that we make. If we have a > > 6 stipulation as to it, we can save a lot of time. > > 7 MR. GOLD: Your Honor -- > > 8 THE COURT: Just a minute, Mr. Gold. > > 9 It seems to me, I mean, you have strung together a > > 10 whole series of different arguments in your response and maybe > > 11 there's an appropriate relationship that I'm not seeing, but > > 12 what it sounds like to me is that you are saying transposing > > 13 this case now into the context, for example, of a patent > > 14 infringement that it somehow would be a defense to > > 15 infringement of a patent that other people were doing it > > 16 first. > > 17 Now, why isn't that line of logic perfectly > > 18 applicable here? > > 19 MR. GARBUS: It is correct, if you interpret or it > > 20 may be correct or is arguably correct that if you interpret > > 21 the use of the DeCSS for the Linux machine, then -- and you > > 22 equate that with copying and selling on the street and doing > > 23 it illegally, we don't. We say that DeCSS was made solely > > 24 by -- for Linux. > > > - Ravi Nanavati > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 20:16:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22328 for dvd-discuss-outgoing; Wed, 19 Jul 2000 20:16:20 -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 UAA22325 for ; Wed, 19 Jul 2000 20:16:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CTQM>; Wed, 19 Jul 2000 17:15:38 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D22@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] When did DivX become available Date: Wed, 19 Jul 2000 17:15:37 -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 thought the "other people were doing it first (and better)" argument was solely addressed to the question of harm. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Robert S. Thau [mailto:rst@ai.mit.edu] > Sent: Wednesday, July 19, 2000 2:50 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] When did DivX become available > > > Ravi Nanavati writes (quoting court transcripts): > > > [Garbus:] > > 2 You may conclude that that portion of our > argument is > > 3 invalid and that whatever we say about Sony > Betamax, etc., is > > 4 irrelevant and in view of the DMCA. > > Comment #1: The legislators thought Betamax was relevant; they went > out of their way to preserve it (or try to). If Garbus hasn't seen > the excerpts I posted yet, they might make interesting reading for him > --- not that he doesn't have other uses for his time. > > > 8 THE COURT: Just a minute, Mr. Gold. > > 9 It seems to me, I mean, you have strung together a > > 10 whole series of different arguments in your > response and maybe > > 11 there's an appropriate relationship that I'm not seeing, but > > 12 what it sounds like to me is that you are saying transposing > > 13 this case now into the context, for example, of a patent > > 14 infringement that it somehow would be a defense to > > 15 infringement of a patent that other people were doing it > > 16 first. > > Comment #2: Hmmm... the more I think about this, the less clear it > gets. For one thing, I thought that "other people were doing it > first" was a defense to trademark infringement, and could affect > damage awards in copyright infringement, but had no effect on patent > infringement. But IANAL. > > This did look to me at first as if he thought 1201 granted patent-like > rights, but on further reflection, it's just weird. > > rst > From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 20:36:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22622 for dvd-discuss-outgoing; Wed, 19 Jul 2000 20:36:51 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22619 for ; Wed, 19 Jul 2000 20:36:50 -0400 Received: by aero.org id <17105-6>; Wed, 19 Jul 2000 17:35:51 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa20888; Wed Jul 19 17:35:38 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 17:35:17 -0700 Subject: RE: [dvd-discuss] Kaplan Recusal Docs To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/19/2000 05:35:16 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 19 Jul 2000 17:35:39 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well...without the DMCA preventing the dreaded hoards of hackers from reverse engineering to make players, everybody would be viewing DVDs made by a closed group who license CSS from a closed group and playing them on players made by a closed group. Three groups of people all working together to C O N T R O L a market , set prices, and eliminate anybody from entering it....as I recall when one company does that it's called a monopoly.... Leland Ray @eon.law.harvard.edu on 07/19/2000 05:05:59 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] Kaplan Recusal Docs Fascinating. Too bad the judge would never allow it, but it would sure be entertaining to explore under oath the relationship between the movie studios and the DMCA. I say this because the transcript suggests that the studios considered getting legislation to pass part of their strategy. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 20:55:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22809 for dvd-discuss-outgoing; Wed, 19 Jul 2000 20:55:07 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA22806 for ; Wed, 19 Jul 2000 20:55:06 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id UAA02209; Wed, 19 Jul 2000 20:55:08 -0400 Message-ID: <39764DEC.7A4B4D5C@mit.edu> Date: Wed, 19 Jul 2000 20:55:08 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available References: <5A8391CA2D9ED311AFAA080009D982B10B1D21@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > > The way I read that is Kaplan using a patent infringement > context to illustrate the weakness of an argument ... kinda > like your mother saying "if all your friends were jumping > off a bridge, would you do that too?" your mother doesn't > mean that all your friends actually -are- jumping off the > bridge, and I don't think Kaplan was implying that CSS enjoys > patent protections. I think he was just asking "are you saying > that it's ok to do (something bad) just because other people > are?" and using patent infringement as context for the question. That makes much more sense. That also means Garbus's response (yes, we could do bad, but we can also do good [or at least legitimate] so it is not the same) addresses the argument Kaplan is making. Thank you. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 21:21:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23391 for dvd-discuss-outgoing; Wed, 19 Jul 2000 21:21:37 -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 VAA23388 for ; Wed, 19 Jul 2000 21:21:36 -0400 Message-ID: <20000720012014.22110.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Wed, 19 Jul 2000 18:20:14 PDT Date: Wed, 19 Jul 2000 18:20:14 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] What happened in trial Wednesday? 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 still haven't seen any reports on what happened in court today (Wednesday). Anybody know? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 21:46:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23877 for dvd-discuss-outgoing; Wed, 19 Jul 2000 21:46:09 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA23874 for ; Wed, 19 Jul 2000 21:46:08 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13F5Oj-0004Ey-00; Wed, 19 Jul 2000 18:45:13 -0700 Date: Wed, 19 Jul 2000 18:45:13 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? Message-ID: <20000719184513.N594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <200007181817.OAA12672@smtp6.mindspring.com> <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.com> <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <4.2.2.20000719101601.00e65100@pop.bellatlantic.net>; from wendy@seltzer.com on Wed, Jul 19, 2000 at 10:18:18AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > It's in the Federal courthouse for the Southern District, in downtown > Manhattan: > 500 Pearl Street, Courtroom 12D beginning at 9 a.m. daily Is it possible to come and go at certain points, or is it necessary to show up at the beginning of the session each day? What do you have to do to get into the courtroom? (Metal detectors, show ID, not have cameras...?) -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 21:52:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23993 for dvd-discuss-outgoing; Wed, 19 Jul 2000 21:52:12 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA23990 for ; Wed, 19 Jul 2000 21:52:11 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id SAA25933 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 18:03:49 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] good msnbc coverage Date: Wed, 19 Jul 2000 18:02:37 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00071918034802.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here is a good article that is mostly sympathetic to our cause from a place I would not have expected it. http://www.msnbc.com/news/435153.asp Enjoy! --James (Russell) -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 21:56:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24052 for dvd-discuss-outgoing; Wed, 19 Jul 2000 21:56:28 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA24049 for ; Wed, 19 Jul 2000 21:56:26 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA24204 for ; Wed, 19 Jul 2000 18:55:32 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA18973; Wed, 19 Jul 2000 18:53:45 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Wine Date: 19 Jul 2000 18:52:37 -0700 Organization: A poorly-installed InterNetNews site Lines: 9 Distribution: isaac Message-ID: <8l5m15$igm$1@blowfish.isaac.cs.berkeley.edu> References: <3975AC1F.376B10E8@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng wrote: > Has anybody tried to run DeCSS under Wine? Or VMWare, or any of the other virtual machine software, I guess...? (I was surprised at the skeptical testimony about Wine. Wine may not be very good, but my understanding is that VMWare is amazingly good at running Windows programs within Linux, really quite surprising how successful it is.) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 19 23:45:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA28496 for dvd-discuss-outgoing; Wed, 19 Jul 2000 23:45:52 -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 XAA28493 for ; Wed, 19 Jul 2000 23:45:51 -0400 Received: from ip176.bedford8.ma.pub-ip.psi.net ([38.32.78.176]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13F7Ge-0000Ro-00 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 23:45:00 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] good msnbc coverage Date: Wed, 19 Jul 2000 23:38:51 -0400 Message-ID: References: <00071918034802.02571@www.rjmconsulting.com> In-Reply-To: <00071918034802.02571@www.rjmconsulting.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 XAA28494 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 19 Jul 2000 18:02:37 -0700, Jim Miller wrote: >Here is a good article that is mostly sympathetic to our cause from a place I >would not have expected it. > >http://www.msnbc.com/news/435153.asp > Well that's from Brock Meeks! (<--kudos) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 00:05:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28797 for dvd-discuss-outgoing; Thu, 20 Jul 2000 00:05:31 -0400 Received: from server1.cluebot.com (server1.cluebot.com [216.110.36.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA28794 for ; Thu, 20 Jul 2000 00:05:29 -0400 Received: (from declan@localhost) by server1.cluebot.com (8.9.3/8.9.3) id XAA14804 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 23:17:21 -0500 Date: Wed, 19 Jul 2000 23:17:21 -0500 From: Declan McCullagh To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Standard for Recusal Message-ID: <20000719231721.C14715@server1.cluebot.com> References: <20000718215729.5537.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.2i In-Reply-To: <20000718215729.5537.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Jul 18, 2000 at 02:57:29PM -0700 X-News-Site: http://www.wired.com/ X-URL: http://www.mccullagh.org/ Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 18, 2000 at 02:57:29PM -0700, Bryan Taylor wrote: > > The facts are simple: Kaplan's firm, while he was a partner, > represented Time Warner in matters of DVD antitrust. Really? What's your source? The URL below seems to indicate contrary-wise: http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07209.PDF I think this judge is a bit of a ham, but so are the lawyers here. Garbus is playing to the media, and I think the judge this week has been reasonably fair. -Declan From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 00:11:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA28832 for dvd-discuss-outgoing; Thu, 20 Jul 2000 00:11:59 -0400 Received: from server1.cluebot.com (server1.cluebot.com [216.110.36.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA28829 for ; Thu, 20 Jul 2000 00:11:58 -0400 Received: (from declan@localhost) by server1.cluebot.com (8.9.3/8.9.3) id XAA14822 for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 23:23:56 -0500 Date: Wed, 19 Jul 2000 23:23:56 -0500 From: Declan McCullagh To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] A (Live)Note on the Trial Transcripts Message-ID: <20000719232356.D14715@server1.cluebot.com> References: <20000719103858.A9888@server1.cluebot.com> <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2.2i In-Reply-To: <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1>; from j.s.tyre@cyberpass.net on Wed, Jul 19, 2000 at 08:39:14AM -0700 X-News-Site: http://www.wired.com/ X-URL: http://www.mccullagh.org/ Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Right. Also Kaplan is addicted to his live transcript-draft feed and frequently refers to it -- sometimes for a minute or two -- when ruling on objections. (Such as whether a topic was covered in direct testimony and thus is appropriate for cross.) -Declan On Wed, Jul 19, 2000 at 08:39:14AM -0700, James S. Tyre wrote: > Yesterday, John Young mentioned that Kaplan was reading the transcripts in > real time on his laptop, but that when the reporter was asked to read > something back, the reporter read from the steno paper notes, not the > ASCIIfied translation. > > LiveNote is good, but as you might expect, it is not perfect. And, no > matter how good it is, it is no better than the input. One small right > thing Kaplan did early in the first day was to ask for a glossary of terms > which, presumably, the court reporter(s) would not recognize. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 00:39:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA29111 for dvd-discuss-outgoing; Thu, 20 Jul 2000 00:39:22 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA29108 for ; Thu, 20 Jul 2000 00:39:21 -0400 Received: from ppp.anonymizer.com (c2T2-197.015.popsite.net [216.126.185.197]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA09360 for ; Wed, 19 Jul 2000 21:40:43 -0700 (PDT) Message-Id: <4.3.2.7.2.20000719213221.00b1f8c0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 19 Jul 2000 21:39:43 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] A (Live)Note on the Trial Transcripts In-Reply-To: <20000719232356.D14715@server1.cluebot.com> References: <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1> <20000719103858.A9888@server1.cluebot.com> <4.3.2.7.2.20000719083027.00aa0bb0@127.0.0.1> 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 11:23 PM 7/19/2000 -0500, Declan McCullagh wrote: >Right. Also Kaplan is addicted to his live transcript-draft feed >and frequently refers to it -- sometimes for a minute or two -- >when ruling on objections. (Such as whether a topic was covered >in direct testimony and thus is appropriate for cross.) It wouldn't surprise me if he is addicted. ;-) I've used LiveNote - AFAIK it has no real competition, which is why I was pretty sure that John was describing it. It's fun, but it's also counterproductive if one is playing an active role, not a passive one. I may be an old fart (not as old as John, no opinion on whether as farty), but I still prefer to do witness exams the old-fashioned way - everything committed to my aging brain, little to no notes, live or otherwise. >-Declan > > >On Wed, Jul 19, 2000 at 08:39:14AM -0700, James S. Tyre wrote: > > Yesterday, John Young mentioned that Kaplan was reading the transcripts in > > real time on his laptop, but that when the reporter was asked to read > > something back, the reporter read from the steno paper notes, not the > > ASCIIfied translation. > > > > LiveNote is good, but as you might expect, it is not perfect. And, no > > matter how good it is, it is no better than the input. One small right > > thing Kaplan did early in the first day was to ask for a glossary of terms > > which, presumably, the court reporter(s) would not recognize. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 01:22:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA29309 for dvd-discuss-outgoing; Thu, 20 Jul 2000 01:22:03 -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 BAA29306 for ; Thu, 20 Jul 2000 01:22:02 -0400 Message-ID: <20000720052041.3121.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Wed, 19 Jul 2000 22:20:41 PDT Date: Wed, 19 Jul 2000 22:20:41 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Standard for Recusal To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Declan McCullagh wrote: > On Tue, Jul 18, 2000 at 02:57:29PM -0700, Bryan Taylor wrote: > > The facts are simple: Kaplan's firm, while he was a partner, > > represented Time Warner in matters of DVD antitrust. > > Really? What's your source? The URL below seems to indicate > contrary-wise: > > http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07209.PDF After further review, I stand by my original statement and fail to see anythin "contrary-wise" in the source you quote. First off, my source is Kaplan himself from p24 of his denial http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07113.PDF "According to a declaration submitted by plaintiffs, Time Warner engaged Paul, Weiss in May 1994 to render antitrust advice to Warner Home Video regarding negotiations between the motion picture, consumer electronics and information technology industries to develop a new voluntary technical standard for optical digital discs. These negotiations, which did not involve copy protection or encryption issues, led to an agreement on a voluntary “DVD” standard in September 1995." The overlap period ended later than May 1994 as shown on p37: "Mr. Robinowitz and the undersigned both were partners at Paul, Weiss until August 22, 1994." Secondly, you fell for Kaplan's spin like a bright-eyed white house intern. Kaplan, in the document you sited is distinguishing "encryption and security of digital files on DVD's" as the "matter" at hand for 28 U.S.C 455(b)(2) purposes. He does not contradict his statement from p24 of the prior document or the statement I made. Antitrust aspects are MAJOR issues in this case. There are 400 messages in this forum on the subject, and Garbus highlighted US v Paramount as the "most similar" case in prior law in his Feed interview, citing antitrust as the reason. Tying, reverse engineering, misuse of copyright, and anticompetitive licencing all relate to antitrust. Cover the issue!! __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 01:30:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA29549 for dvd-discuss-outgoing; Thu, 20 Jul 2000 01:30:25 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA29546 for ; Thu, 20 Jul 2000 01:30:24 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FXZ00DY0BTJ6U@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Wed, 19 Jul 2000 21:44:10 -0700 (PDT) Date: Wed, 19 Jul 2000 21:56:43 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Wine In-reply-to: <3976179B.363E2F98@mit.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FXZ00DY1BTJ6U@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > Chris Moseng wrote: > > Has anybody tried to run DeCSS under Wine? I don't have it installed. In > > fact, wouldn't Wine be a good project to bring up? > > > > > Q. Does DeCSS run under the Microsoft Windows operating system? > > > > > Schumann: > > > A. Absolutely. In fact, that's the only place that the DeCSS > executable works. > > Apparently Johansen can testify that DeCSS will work under WINE, > (see http://www.wired.com/news/politics/0,1283,33925,00.html) > as long as the defense remembers to ask him about this. If you look throught the WINE bug list you will see that in fact that *they cannot* run deCSS. The reason is that the binary deCSS uses some sort of .EXE packing/obfuscation. Apparently the WINE developers attempted to fix it but have not quite gotten it (its been about a moth since I last checked, so I don't know if the status has changed.) > [...] He is > being called as a limited witness and he's leaving the country > so we have to be sure to do this now. Actually I am worried that the prosecution will get to ask pointed questions like "Do you know who the German developers who helped you are?" to which he answers "No, I only knew them through ICQ" to which they respond "So you cannot say one way or another whether or not these developers legitimately reverse engineered the code, or if they simply copied source code that they may have obtained illegally" ... Have we properly prepared Johansen for questions like this? > [...] Personally, I'd wonder about > DeCSS working under WINE. I presume you'd need to be sending raw > commands to the DVD drive controller and using a Windows DVD > driver because DeCSS authenticates to the drive. We could also > ask someone from the WINE project to comment on the feasibility > of running DeCSS under WINE if that seems useful. See above. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 02:49:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA30428 for dvd-discuss-outgoing; Thu, 20 Jul 2000 02:49:50 -0400 Received: from myriad (cx576138-a.pv1.ca.home.com [24.9.136.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA30425 for ; Thu, 20 Jul 2000 02:49:48 -0400 Received: (from ghio@localhost) by myriad (8.9.3/8.9.3/Debian/GNU) id XAA32378; Wed, 19 Jul 2000 23:44:56 -0700 Date: Wed, 19 Jul 2000 23:44:56 -0700 Message-Id: <200007200644.XAA32378@myriad> To: dvd-discuss@eon.law.harvard.edu From: ghio@nospam.altavista.net (Matthew Ghio) Subject: [dvd-discuss] Carnegie Mellon University Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu After reading Monday's transcript I'd like to comment on two things regarding Carnegie Mellon University, speaking as a student who was there this spring. (I'm currently away for the summer.) Mostly this is from memory right now, but I can try to dig up citations if anyone is interested. Contrary to what Shamos said, Touretzky took a lot of heat over the DeCSS posting. MPAA sent CMU a C&D letter regarding his site and that of a student who had posted DeCSS. The student was pressured to take it down, and did so. Touretzky stood his ground, and ultimately no official action was taken against him that I know of. There was an article in the school paper about the incident, which Touretzky posted on his web site along with his response. Regarding Shamos's use of CMU resources, the issue is really murky. CMU has a policy against any commercial use of its network. What exactly that means is open to various interpretations. In theory, the acceptable use policy applies to everyone at CMU; in practice, it's enforced rather arbitrarily. There are a lot of gray areas, and in my experience, faculty are generally given more leeway than students, and staff members working in network engineering get a lot more slack than staff members in other departments. The one thing that they are really firm on is prohibiting any commercial website hosting. There is also a policy of immediately investigating and removing any .com sites found on the school's network. I know it's rather silly to judge a site by its name, but that's a heuristic that several people there treat as gospel. But even this rule gets bent sometimes - one Computer Science professor was allowed to keep his .com web site (www.discretemath.com) for quite a while, although I think someone did finally complain about it, as the site name was changed recently. There are lots of other nasty issues that come up again and again, for example, posting resumes is generally okay, but when it's done in the context of self-employment or founding a new company, conflicts can arise. Then there are issues of linking to sites with banner ads, other people having shell accounts on CMU machines... it can get real confusing really fast and is a constant source of disputes, with no end in sight. I rather suspect that the answer to whether or not what Shamos violated CMU policy comes down to either "there's no specific formal policy on that" or more likely, "nobody complained about it, so I guess it's okay." I really doubt you'll get a straight answer; I've been trying for years, to little avail. Nonetheless, I think it's a really interesting question to ask. :-) From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 03:33:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA31427 for dvd-discuss-outgoing; Thu, 20 Jul 2000 03:33:15 -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 DAA31424 for ; Thu, 20 Jul 2000 03:33:14 -0400 Received: from localhost (localhost [127.0.0.1]) by toad.com (8.7.5/8.7.3) with SMTP id AAA01733; Thu, 20 Jul 2000 00:32:22 -0700 (PDT) Message-Id: <200007200732.AAA01733@toad.com> X-Authentication-Warning: toad.com: Host localhost [127.0.0.1] didn't use HELO protocol To: cafe-news@eff.org CC: dvd-discuss@eon.law.harvard.edu, decss@lists.lemuria.org Subject: [dvd-discuss] DVD update: more plaintiff witnesses today Date: Thu, 20 Jul 2000 00:32:21 -0700 From: John Gilmore Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: Wed, July 19, 2000 Universal City Studios v. 2600 Magazine Wednesday morning in the New York DVD trial began with continued examination of Marsha King, a VP in Time-Warner. She explained how terribly hurt the studios were by the mere loss of confidence in CSS, let alone the millions of dollars they could also potentially lose from illicit copying. She described her participation in creating the DVD format, deciding on security standards for it, and negotiating with the consumer electronics and computer industries on a common position (which was enshrined in the CSS and the CSS license agreements). Interestingly, Judge Kaplen refused to allow questioning in any area related to when and whether buyers of Warner DVDs receive the "authority of the copyright holder", which is a critical element of whether the buyer is circumventing when they play a DVD. The judge thought it was obvious, and eventually facetiously asked Ms. King whether Time-Warner authorized buyers to play their DVDs on players which have never signed a DVDCCA license, to which she said "No". But this begged the question of exactly how a consumer knows what authority they have been granted, where that authority is defined by a company, whether the company can change its mind later or for specific consumers, whether this authority is general or can have limitations such as "you are authorized to play this Sony movie only on Sony's DVD players", etc. It is our position that the authority to play a DVD is granted to the buyer at the time of purchase, without limitation. Any other reading of the statute produces chaos in the market, since after selling a single copy of a technically-protected work, any copyright owner would have the legal right to decide what players are permitted to exist in the entire market (by withdrawing their authority for some drives to play their work, and then suing drive distributors, as Time Warner sued 2600, to ban them as unauthorized circumventers). Prof. Franklin Fisher testified after lunch about the economics of markets when "free" (zero-price) goods are introduced into them. While his analysis was slightly interesting, it was all hypothetical, and was not based on any actual investigation into consumer or company behavior in the movie or DVD markets. Judge Kaplan cynically described it as the prosecuting hiring a distinguished chemistry professor to explain that when you put an icepick into a tire, the air comes out. The judge said he had already figured that out. [My own experience in running Cygnus Solutions, a successful free-software support company, indicates that what actually happens when you toss zero-price intellectual property into a market is much more interesting (and financially rewarding) than merely having the market all leak away, leaving no market. But it's clearly obvious what would happen, to many people who've never tried it; they're just wrong.] Thursday will begin with a defense witness, teenage Norwegian DeCSS programmer Jon Johansen at 9AM (out of order since he is leaving early). Jon will be followed by plaintiff witnesses Mikhail Reider of the MPAA anti-piracy unit, and then Bruce Boyden, who visited web sites such as 2600 to find copies of DeCSS on them. These are the final plaintiffs' witnesses. When they are finished (possibly on Friday), the defense will begin calling its witnesses, beginning with Ed Felton, who used DeCSS in teaching students of applied cryptography what can be learned by studying failed encryption systems. Then Emmanuel Goldstein, the defendant, publisher of 2600 magazine and long-time radio journalist will testify on his own behalf. We hope to see you there! An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ ------------------------------------------------------------------ The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 05:23:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA01629 for dvd-discuss-outgoing; Thu, 20 Jul 2000 05:23:18 -0400 Received: from blount.mail.mindspring.net (blount.mail.mindspring.net [207.69.200.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA01626 for ; Thu, 20 Jul 2000 05:23:17 -0400 Received: from jy01 (user-2iniijn.dialup.mindspring.com [165.121.74.119]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id FAA10860 for ; Thu, 20 Jul 2000 05:22:25 -0400 (EDT) Message-Id: <200007200922.FAA10860@blount.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 20 Jul 2000 05:17:56 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Where do we go from here? In-Reply-To: <20000719184513.N594@zork.net> References: <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> <200007181817.OAA12672@smtp6.mindspring.com> <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.com> <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> Mime-Version: 1.0 Content-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 can come and go during the proceedings. You are metal-screened upon entering the courthouse, not at the courtroom. No computer use inside the courtroom. Sometimes you can bring a computer into the courthouse, sometimes not, both have happened to me. A Palm Pilot was allowed in, but I haven't tried to use it inside the courtroom. No photos allowed, as far as I know. What is peculiar is that Declan gets to ignore all these restrictions. I spotted him and Judge Kaplan at lunch at the locally infamous restaurant where payoffs are made and whackings kissed off. Shawn Reimerdes will attend today's session. His infamous "fuck the lawyers" was cited in court by Schumann, or Shamos, maybe, with a complicitous wink at Judge Kaplan -- swap the videotape on #FTL. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 06:08:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA02144 for dvd-discuss-outgoing; Thu, 20 Jul 2000 06:08:14 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA02141 for ; Thu, 20 Jul 2000 06:08:12 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FDEb-0005Bm-00; Thu, 20 Jul 2000 03:07:17 -0700 Date: Thu, 20 Jul 2000 03:07:17 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Where do we go from here? Message-ID: <20000720030717.Y594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> <200007181817.OAA12672@smtp6.mindspring.com> <200007180348.XAA20411@vvr09.ai.mit.edu> <3973F1EA.D548A1AA@mit.edu> <200007181306.JAA14692@soggy-fibers.ai.mit.edu> <200007181817.OAA12672@smtp6.mindspring.com> <4.2.2.20000719101601.00e65100@pop.bellatlantic.net> <20000719184513.N594@zork.net> <200007200922.FAA10860@blount.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007200922.FAA10860@blount.mail.mindspring.net>; from jya@pipeline.com on Thu, Jul 20, 2000 at 05:17:56AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young writes: > Shawn Reimerdes will attend today's session. His infamous > "fuck the lawyers" was cited in court by Schumann, or Shamos, > maybe, with a complicitous wink at Judge Kaplan -- swap the > videotape on #FTL. Protected political expression as much as Shakespeare, it would seem, even in a courthouse (though that doesn't mean it's guaranteed to win the favor of judges). Cohen v. California, 403 U.S. 15 (1971) http://laws.findlaw.com/us/403/15.html And would you believe that, in _Cohen_, Melville B. Nimmer argued the cause for appellant. -- 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 Jul 20 06:11:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA02251 for dvd-discuss-outgoing; Thu, 20 Jul 2000 06:11:58 -0400 Received: from mtiwmhc24.worldnet.att.net (mtiwmhc24.worldnet.att.net [204.127.131.49]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA02248 for ; Thu, 20 Jul 2000 06:11:57 -0400 Received: from [12.88.194.20] ([12.88.192.6]) by mtiwmhc24.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000720101106.MXTQ21390.mtiwmhc24.worldnet.att.net@[12.88.194.20]> for ; Thu, 20 Jul 2000 10:11:06 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Jul 2000 06:10:41 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Day 3 Trial Transcript Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The transcript of court proceedings from day 3 is available at: http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000719_ny_tr ial_transcript.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 08:41:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA06534 for dvd-discuss-outgoing; Thu, 20 Jul 2000 08:41:25 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA06531 for ; Thu, 20 Jul 2000 08:41:24 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id IAA05479; Thu, 20 Jul 2000 08:41:27 -0400 Message-ID: <3976F377.292033E0@mit.edu> Date: Thu, 20 Jul 2000 08:41:27 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Day 3 Trial Transcript 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 Eddan Katz wrote: > > The transcript of court proceedings from day 3 is available at: > http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000719_ny_tr > ial_transcript.html > > -Eddan Katz > EFF Intern Thank you. The transcript is wonderful. Anyone with an open mind can see the details of the DVD scheme here. Unfortunately, I don't think that is going to help us here. There was a missed opportunity, I think, in the cross-examination of Ms. King: THE COURT: Sustained. 19 What you are obviously trying to get at, Mr. Garbus, 20 is whether Warner or any of the other studios has authorized 21 consumer purchases of their DVDs to circumvent the copy 22 protection of CSS. 23 Now, if you want to ask that question, why don't you 24 ask it. 25 BY MR. GARBUS: 1 Q. I'll ask that question of the witness. 2 A. No. The missed question is whether Warner Brothers believes it _could_ grant that authorization or not. If yes, then it is a potential non-circumventing use of DeCSS. Some copyright owners might want to CSS scramble content and use DeCSS to descramble it (say I want to protect my "home movies" from eavesdropping --- CSS, IIRC, scrambles each sector separately and rearranges them slightly --- so it might be good for a streaming source). If no [which is what I think the answer really is], then we have a conflict with the statue (it is the authority of the copyright owner, not of the DVD CCA) as well as a new set of antitrust questions. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 09:04:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA07119 for dvd-discuss-outgoing; Thu, 20 Jul 2000 09:04:33 -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 JAA07116 for ; Thu, 20 Jul 2000 09:04:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6KD3dO25806 for ; Thu, 20 Jul 2000 16:03:40 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 20 Jul 2000 16:03:39 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] When did DivX become available In-Reply-To: <200007192149.RAA15065@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, 19 Jul 2000, Robert S. Thau wrote: >Comment #2: Hmmm... the more I think about this, the less clear it >gets. For one thing, I thought that "other people were doing it >first" was a defense to trademark infringement, and could affect >damage awards in copyright infringement, but had no effect on patent >infringement. But IANAL. You need to see what Marty is doing. Instead of arguing that 'somebody did it first' justifies the act, he's trying to convince the court about the intent of the writer of DeCSS. Since the tool was already available, the intent behind DeCSS was likely something else than circumvention - namely, compatibility/RE. This is a distinctly different goal from simply trying to justify the creation of the software and works because the injunction cannot be made permanent if we have commercially significant use other than circumvention, this being what instigated the creation of DeCSS. As for what that has to do with the 'purpose' spoken about by 1201, I dunno. >This did look to me at first as if he thought 1201 granted patent-like >rights, but on further reflection, it's just weird. I think the court is once again misreading Marty's tactics. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 09:29:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA07581 for dvd-discuss-outgoing; Thu, 20 Jul 2000 09:29:59 -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 JAA07553 for ; Thu, 20 Jul 2000 09:29:56 -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:2.21) with ESMTP id JAA06598; Thu, 20 Jul 2000 09:28:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id JAA18214; Thu, 20 Jul 2000 09:28:43 -0400 (EDT) Date: Thu, 20 Jul 2000 09:28:43 -0400 (EDT) Message-Id: <200007201328.JAA18214@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: cafe-news@eff.org, decss@lists.lemuria.org Subject: [dvd-discuss] DVD update: more plaintiff witnesses today In-Reply-To: <200007200732.AAA01733@toad.com> References: <200007200732.AAA01733@toad.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Gilmore writes: > Interestingly, Judge Kaplen refused to allow questioning in any area > related to when and whether buyers of Warner DVDs receive the > "authority of the copyright holder", which is a critical element of > whether the buyer is circumventing when they play a DVD. The judge > thought it was obvious, and eventually facetiously asked Ms. King > whether Time-Warner authorized buyers to play their DVDs on players > which have never signed a DVDCCA license, to which she said "No". Hmmm... looking at the transcripts, it looks like he thought that it was "a legal question" which isn't "a matter for testimony", not that the legal issue was obvious. (It *is* obvious what Warner wants, right now and in this instance, just not what they have the legal right to do). 2 Q. Am I authorized by Warner Brothers to take that DVD to an 3 unauthorized player, one that does not have a contract with 4 the DVD-CCA? 5 MR GOLD: Your Honor, I cannot understand the 6 relevance of this line. He may be planning other lawsuits, 7 but I don't understand the relevance to this one. 8 THE COURT: Look, Mr. Garbus, it seems to me that 9 what this is beginning to sound like is the start of a debate 10 between you and the witness about what the Copyright Act 11 permits the buyer of a copyrighted work to do with it. 12 If that's what it is, that's a debate that you and 13 Mr. Gold will have and I will decide. It's a legal question. 14 And it's not a matter for testimony. If it's something else, 15 I don't perceive what it might be. 16 MR. GARBUS: It's not a debate. I just want to find 17 out the facts as Warner Brothers understands it. 18 THE COURT: So, you want Warner Brothers' 19 understanding of what the Copyright Act provides? 20 MR. GARBUS: No. I want to know, she stands there on 21 behalf of Warner Brothers. And I want to know if I can 22 whether as she -- in my contract, if you will, when I buy this 23 from Tower, can I play this on any player, anywhere, anywhere 24 in the world? That's what I want to know. 25 THE COURT: The objection is sustained. Which looks like it might have been a missed opportunity; perhaps things would have gone differently had Garbus answered "yes". > But > this begged the question of exactly how a consumer knows what > authority they have been granted, where that authority is defined by a > company, whether the company can change its mind later or for specific > consumers, whether this authority is general or can have limitations > such as "you are authorized to play this Sony movie only on Sony's DVD > players", etc. It is our position that the authority to play a DVD is > granted to the buyer at the time of purchase, without limitation. Any > other reading of the statute produces chaos in the market, since after > selling a single copy of a technically-protected work, any copyright > owner would have the legal right to decide what players are permitted > to exist in the entire market (by withdrawing their authority for some > drives to play their work, and then suing drive distributors, as Time > Warner sued 2600, to ban them as unauthorized circumventers). Yep. Sigh... rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 09:52:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA07917 for dvd-discuss-outgoing; Thu, 20 Jul 2000 09:52:27 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA07914 for ; Thu, 20 Jul 2000 09:52:26 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id JAA14021; Thu, 20 Jul 2000 09:52:29 -0400 Message-ID: <3977041D.8E1D2555@mit.edu> Date: Thu, 20 Jul 2000 09:52:29 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DVD update: more plaintiff witnesses today References: <200007200732.AAA01733@toad.com> <200007201328.JAA18214@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: > > John Gilmore writes: > > Interestingly, Judge Kaplen refused to allow questioning in any area > > related to when and whether buyers of Warner DVDs receive the > > "authority of the copyright holder", which is a critical element of > > whether the buyer is circumventing when they play a DVD. The judge > > thought it was obvious, and eventually facetiously asked Ms. King > > whether Time-Warner authorized buyers to play their DVDs on players > > which have never signed a DVDCCA license, to which she said "No". > > Hmmm... looking at the transcripts, it looks like he thought that it > was "a legal question" which isn't "a matter for testimony", not that > the legal issue was obvious. (It *is* obvious what Warner wants, > right now and in this instance, just not what they have the legal > right to do). > > 2 Q. Am I authorized by Warner Brothers to take that DVD to an > 3 unauthorized player, one that does not have a contract with > 4 the DVD-CCA? > 5 MR GOLD: Your Honor, I cannot understand the > 6 relevance of this line. He may be planning other lawsuits, > 7 but I don't understand the relevance to this one. > 8 THE COURT: Look, Mr. Garbus, it seems to me that > 9 what this is beginning to sound like is the start of a debate > 10 between you and the witness about what the Copyright Act > 11 permits the buyer of a copyrighted work to do with it. > 12 If that's what it is, that's a debate that you and > 13 Mr. Gold will have and I will decide. It's a legal question. > 14 And it's not a matter for testimony. If it's something else, > 15 I don't perceive what it might be. > 16 MR. GARBUS: It's not a debate. I just want to find > 17 out the facts as Warner Brothers understands it. > 18 THE COURT: So, you want Warner Brothers' > 19 understanding of what the Copyright Act provides? > 20 MR. GARBUS: No. I want to know, she stands there on > 21 behalf of Warner Brothers. And I want to know if I can > 22 whether as she -- in my contract, if you will, when I buy this > 23 from Tower, can I play this on any player, anywhere, anywhere > 24 in the world? That's what I want to know. > 25 THE COURT: The objection is sustained. > > Which looks like it might have been a missed opportunity; perhaps > things would have gone differently had Garbus answered "yes". > I don't think it would have gone differently if Garbus had said yes. If he'd said yes he would have been asking Ms. King for a legal opinion from Warner Brothers, which Kaplan would have shut down. OTOH, it is good for us that he has decided that "authorization" is "a legal question", not a "matter for testimony". This means we have backed away from the "nightmare scenario" I was worried about earlier: where Kaplan uses his power as finder-of-fact to torpedo our legal case. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:16:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09632 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:16:55 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09629 for ; Thu, 20 Jul 2000 11:16:54 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id KAA11518 for ; Thu, 20 Jul 2000 10:16:03 -0500 (CDT) Message-ID: <39771776.B1EE484A@uic.edu> Date: Thu, 20 Jul 2000 10:15:03 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Wine vs VMWare Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > (I was surprised at the skeptical testimony > about Wine. Wine may not be very good, > but my understanding is that VMWare is > amazingly good at running Windows programs > within Linux, really quite surprising how > successful it is.) That's because when you run VMWare, the VMWare program creates an emulated computer, a "Virtual Machine", or VM, which then boots an actual, real copy of Windows, which thinks it's running on bare iron. So your Windows programs aren't running under Linux, so much as they are running under Windows under VMware under Linux. This works well because the X86 architecture and the various device architectures are well understood and documented. On the other hand, Wine attempts to duplicate the functionality of the Windows libraries, which is actually harder, because Windows contains many undocumented APIs. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:24:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09801 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:24:19 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09798 for ; Thu, 20 Jul 2000 11:24:18 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id LAA10168 for ; Thu, 20 Jul 2000 11:23:29 -0400 Date: Thu, 20 Jul 2000 11:23:28 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Wine vs VMWare In-Reply-To: <39771776.B1EE484A@uic.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 07/20/00 at 10:15, 'twas brillig and John Schulien scrobe: > That's because when you run VMWare, the > VMWare program creates an emulated > computer, a "Virtual Machine", or VM, > which then boots an actual, real copy of > Windows, which thinks it's running on bare > iron. So your Windows programs aren't > running under Linux, so much as they are > running under Windows under VMware > under Linux. > > This works well because the X86 > architecture and the various device > architectures are well understood and > documented. > > On the other hand, Wine attempts to > duplicate the functionality of the Windows > libraries, which is actually harder, because > Windows contains many undocumented APIs. > I was working on a response to this, but you captured it nicely. (And left out all the swearwords, too.. :-) We use vmware quite a bit. In fact, I just got the mandate from above that I can investigate the performance gain to be had by running vmware on a dual-proc system with a dedicated IDE drive... (chortle chortle "Toys, toys") The only downer is, I'll have to actually install a windoze OS. Oh, well, nothing says I have to keep it *running*... Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:25:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09823 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:25:09 -0400 Received: from bunyip.flash.net (bunyip.flash.net [209.30.2.15]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09819 for ; Thu, 20 Jul 2000 11:25:08 -0400 Received: from debian.org (p228-59.atnt5.dialup.ftw1.flash.net [209.30.228.59]) by bunyip.flash.net (8.9.3/Pro-8.9.3) with ESMTP id KAA10461 for ; Thu, 20 Jul 2000 10:24:16 -0500 (CDT) Message-ID: <39771B59.A106FC79@debian.org> Date: Thu, 20 Jul 2000 15:31:37 +0000 From: "Matthew R. Pavlovich" X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Here's a good site for info. 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.mpaa.org/Press/default.HTM Its neat.-- "Q: Some say the CSS encryption was easy to hack, and therefore the industry is at fault. Is this true? A: There is no such thing as a perfect encryption system that is immune to hacking. Newer and tougher copy protection systems are in development, but we acknowledge that determined thieves will attempt to bypass these protections as well." I am offended. Rest of the doc is filled w/ lawyer FUD. (Fear, Uncertainty and Doubt for all you non-geeks). MRP From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:34:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA09965 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:34:51 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA09962 for ; Thu, 20 Jul 2000 11:34:50 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id KAA23297 for ; Thu, 20 Jul 2000 10:36:56 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Thu, 20 Jul 2000 11:33:57 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C07@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Kaplan Recusal Docs Date: Thu, 20 Jul 2000 11:33:56 -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 Correction: an abusive monopoly... -----Original Message----- From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] Well...without the DMCA preventing the dreaded hoards of hackers from reverse engineering to make players, everybody would be viewing DVDs made by a closed group who license CSS from a closed group and playing them on players made by a closed group. Three groups of people all working together to C O N T R O L a market , set prices, and eliminate anybody from entering it....as I recall when one company does that it's called a monopoly.... . . . From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:41:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10220 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:41:42 -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 LAA10217 for ; Thu, 20 Jul 2000 11:41:35 -0400 Received: from ip214.bedford8.ma.pub-ip.psi.net ([38.32.78.214]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13FIRF-0000yZ-00 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 11:40:41 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Date: Thu, 20 Jul 2000 11:34:31 -0400 Message-ID: References: <39771B59.A106FC79@debian.org> In-Reply-To: <39771B59.A106FC79@debian.org> 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 LAA10218 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000 15:31:37 +0000, "Matthew R. Pavlovich" wrote: >http://www.mpaa.org/Press/default.HTM > >Its neat.-- > > "Q: Some say the CSS encryption was easy to hack, and therefore >the industry is at fault. Is this true? > > A: There is no such thing as a perfect encryption system that >is immune to hacking. Newer and tougher copy protection systems are in >development, but we acknowledge that determined thieves will attempt to >bypass these protections as well." My latest gripe is: given that they acknowledge this fact, isn't a security architecture that locks in a system from '94-5 a bad horse to choose? (especially a systerm which rewards the true pirates) Can most (or any) consumer DVD players have their firmware updated? Jim T? __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 11:56:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA10621 for dvd-discuss-outgoing; Thu, 20 Jul 2000 11:56:56 -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 LAA10618 for ; Thu, 20 Jul 2000 11:56:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6CTV8>; Thu, 20 Jul 2000 08:56:12 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D24@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] DVD update: more plaintiff witnesses today Date: Thu, 20 Jul 2000 08:56:11 -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 > -----Original Message----- > From: John Gilmore [mailto:gnu@toad.com] ... > > Interestingly, Judge Kaplen refused to allow questioning in any area > related to when and whether buyers of Warner DVDs receive the > "authority of the copyright holder", which is a critical element of > whether the buyer is circumventing when they play a DVD. This is bad ... when the judge refuses to let the defense pursue it's case ... that's 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 Thu Jul 20 12:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10775 for dvd-discuss-outgoing; Thu, 20 Jul 2000 12:07:12 -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 MAA10772 for ; Thu, 20 Jul 2000 12:07:10 -0400 Message-ID: <20000720160544.3886.qmail@web511.mail.yahoo.com> Received: from [131.44.121.4] by web511.mail.yahoo.com; Thu, 20 Jul 2000 09:05:44 PDT Date: Thu, 20 Jul 2000 09:05:44 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan considers declatory judgment To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's an interesting dialouge where Kaplan asks King if he should make a declatory judgement that posting DeCSS is illegal. Curious. Would such a judgement bind someone who was outside of SDNY? p423 22 THE COURT: Given the apparent dissemination of the 23 DeCSS code, wouldn't your interests, if they are valid, be 24 served to whatever extent a Court is able to serve them by 25 declaratory judgment in determining whether or not what p424 1 occurred here and what is threatened to continue occur with 2 DeCSS, assuming there's a continued threat, is illegal or not? 3 Do you follow me? 4 THE WITNESS: In other words, you're saying if it 5 just was declared illegal, as opposed to -- 6 THE COURT: As opposed to picking out one defendant 7 to enjoin. It's as if what you were trying to do here was to 8 stop 37,000 kayakers coming down the Hudson River and you're 9 asking for an injunction against one of them on the premise 10 that coming down the Hudson River in a kayak is illegal. 11 Even if you get that injunction, there are going to 12 be 36,999 kayakers coming down the river. Isn't what you are 13 really after here a determination of whether it's illegal to 14 kayak down the Hudson? 15 THE WITNESS: Yes, that is certainly what we are 16 after here. My response to that is that, at least as one of 17 the studios involved in this lawsuit, we had to start 18 somewhere. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 12:22:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11349 for dvd-discuss-outgoing; Thu, 20 Jul 2000 12:22:38 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11346 for ; Thu, 20 Jul 2000 12:22:36 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6KGMVr21874; Thu, 20 Jul 2000 12:22:31 -0400 Date: Thu, 20 Jul 2000 12:22:31 -0400 Message-Id: <200007201622.e6KGMVr21874@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] Kaplan considers declatory judgment Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor wrote: r00t! He just killed their case. Either now or in appeals. I love this country! Rares >Here's an interesting dialouge where Kaplan asks King if he should make >a declatory judgement that posting DeCSS is illegal. Curious. Would >such a judgement bind someone who was outside of SDNY? > >p423 > 22 THE COURT: Given the apparent dissemination of the > 23 DeCSS code, wouldn't your interests, if they are valid, be > 24 served to whatever extent a Court is able to serve them by > 25 declaratory judgment in determining whether or not what >p424 > 1 occurred here and what is threatened to continue occur with > 2 DeCSS, assuming there's a continued threat, is illegal or not? > > 3 Do you follow me? > > 4 THE WITNESS: In other words, you're saying if it > 5 just was declared illegal, as opposed to -- > > 6 THE COURT: As opposed to picking out one defendant > 7 to enjoin. It's as if what you were trying to do here was to > 8 stop 37,000 kayakers coming down the Hudson River and you're > 9 asking for an injunction against one of them on the premise > 10 that coming down the Hudson River in a kayak is illegal. > 11 Even if you get that injunction, there are going to > 12 be 36,999 kayakers coming down the river. Isn't what you are > 13 really after here a determination of whether it's illegal to > 14 kayak down the Hudson? > > 15 THE WITNESS: Yes, that is certainly what we are > 16 after here. My response to that is that, at least as one of > 17 the studios involved in this lawsuit, we had to start > 18 somewhere. Rares Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 12:28:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11887 for dvd-discuss-outgoing; Thu, 20 Jul 2000 12:28:16 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11884 for ; Thu, 20 Jul 2000 12:28:14 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id IAA15350 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 08:39:45 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan considers declatory judgment Date: Thu, 20 Jul 2000 08:37:52 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <20000720160544.3886.qmail@web511.mail.yahoo.com> In-Reply-To: <20000720160544.3886.qmail@web511.mail.yahoo.com> MIME-Version: 1.0 Message-Id: <00072008394506.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know the entire context, but it sounds to me like kaplan is asking the studios why they decided to go after an injunction against one person when they knew that it was already widely disseminated. I don't think any such ruling is binding outside the SDNY. But I am not a lawyer (the expanded version just looks so much better, doesn't it). Since it's going to be appealed no matter which way it goes, I don't think this matters quite as much as one would think. --Russell On Thu, 20 Jul 2000, you wrote: > Here's an interesting dialouge where Kaplan asks King if he should make > a declatory judgement that posting DeCSS is illegal. Curious. Would > such a judgement bind someone who was outside of SDNY? > > p423 > 22 THE COURT: Given the apparent dissemination of the > 23 DeCSS code, wouldn't your interests, if they are valid, be > 24 served to whatever extent a Court is able to serve them by > 25 declaratory judgment in determining whether or not what > p424 > 1 occurred here and what is threatened to continue occur with > 2 DeCSS, assuming there's a continued threat, is illegal or not? > > 3 Do you follow me? > > 4 THE WITNESS: In other words, you're saying if it > 5 just was declared illegal, as opposed to -- > > 6 THE COURT: As opposed to picking out one defendant > 7 to enjoin. It's as if what you were trying to do here was to > 8 stop 37,000 kayakers coming down the Hudson River and you're > 9 asking for an injunction against one of them on the premise > 10 that coming down the Hudson River in a kayak is illegal. > 11 Even if you get that injunction, there are going to > 12 be 36,999 kayakers coming down the river. Isn't what you are > 13 really after here a determination of whether it's illegal to > 14 kayak down the Hudson? > > 15 THE WITNESS: Yes, that is certainly what we are > 16 after here. My response to that is that, at least as one of > 17 the studios involved in this lawsuit, we had to start > 18 somewhere. > > > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.yahoo.com/ -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 12:29:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12145 for dvd-discuss-outgoing; Thu, 20 Jul 2000 12:29:10 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA12142 for ; Thu, 20 Jul 2000 12:29:08 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id IAA15842 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 08:40:31 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Kaplan considers declatory judgment Date: Thu, 20 Jul 2000 08:40:05 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200007201622.e6KGMVr21874@tbird.iworld.com> In-Reply-To: <200007201622.e6KGMVr21874@tbird.iworld.com> MIME-Version: 1.0 Message-Id: <00072008403107.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Please explain. How did he do that? --Russell On Thu, 20 Jul 2000, you wrote: > Bryan Taylor wrote: > > r00t! > > He just killed their case. Either now or in appeals. > > I love this country! > Rares > Rares > > Windows the other 70's technology. > ---------------------- > Do you do Linux? :) > Get your FREE @linuxstart.com email address at: http://www.linuxstart.com -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 12:50:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13029 for dvd-discuss-outgoing; Thu, 20 Jul 2000 12:50:35 -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 MAA13026 for ; Thu, 20 Jul 2000 12:50:29 -0400 Received: from ip247.bedford3.ma.pub-ip.psi.net ([38.32.11.247]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13FJVu-00024j-00 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 12:49:35 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Date: Thu, 20 Jul 2000 12:43:25 -0400 Message-ID: References: <39771B59.A106FC79@debian.org> 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 MAA13027 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I wrote: >My latest gripe is: given that they acknowledge this fact, isn't >a security architecture that locks in a system from '94-5 a bad >horse to choose? (especially a systerm which rewards the true >pirates) > >Can most (or any) consumer DVD players have their firmware updated? Neverrmind: http://www.dvddemystified.com/dvdfaq.html#1.41 So, now I ask: why aren't we on CSS v. 8 by now? Does Microsoft were to run to Judge Kaplan every time a new macro- virus appear? (perhaps they should considering the latest VBA alarm...) Sure they will have to maintain backward compatibility with CSS 1 titles-- those have already been put at risk (from their point of view.) But I'll be damned if the law can protect them from having to compete in this day and age. >Jim T? Please illuminate. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:19:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15700 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:19:43 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15697 for ; Thu, 20 Jul 2000 13:19:42 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6KHJcA27662; Thu, 20 Jul 2000 13:19:38 -0400 Date: Thu, 20 Jul 2000 13:19:38 -0400 Message-Id: <200007201719.e6KHJcA27662@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] Kaplan considers declatory judgment Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Miller wrote: By focussing on the illegality of posting the source code, Kaplan is sidestepping many of the issues that have been brought up here. Essentially the same way he's trying to kill 37,000 kayakers with one stone, he's going to sidestep every argument and close the case on simply "Source Code Posting Illegal(aka SCPI brother of RICO)". Fine. We kill it here by winning the argument. Or we kill it in appeals. He's completely writing the case record himself by doing this. >Please explain. How did he do that? > >--Russell > >On Thu, 20 Jul 2000, you wrote: >> Bryan Taylor wrote: >> >> r00t! >> >> He just killed their case. Either now or in appeals. >> >> I love this country! >> Rares > >> Rares >> >> Windows the other 70's technology. >> ---------------------- >> Do you do Linux? :) >> Get your FREE @linuxstart.com email address at: http://www.linuxstart.com >-- >Jim Miller - rmiller@duskglow.com - russell@know-where.com >----------------------------------------------------------------------- >The following sites are my own and do not necessarily represent >the views of any of my clients. > >http://www.duskglow.com >http://www.singlegeek.com >http://www.whathaveyoudone.org > Windows the other 70's technology. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:29:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15856 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:29:06 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15853 for ; Thu, 20 Jul 2000 13:29:04 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id KAA27265 for ; Thu, 20 Jul 2000 10:28:12 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id KAA19552; Thu, 20 Jul 2000 10:26:23 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 10:26:13 -0700 Organization: A poorly-installed InterNetNews site Lines: 6 Distribution: isaac Message-ID: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> References: <39771B59.A106FC79@debian.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes, and I have a gripe about statements made, I think, at the trial: that "every encryption algorithm will be broken, sooner or later". That's a common misperception, but there are very good reasons to believe that it's just not true. (Of course, there's a kernel of truth in there -- namely, that designing secure encryption algorithms is very hard to get right -- but that's very different, and in this case, the difference is important!) From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:37:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16741 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:37:33 -0400 Received: from gryphon.auspice.net (gryphon.ccs.brandeis.edu [129.64.55.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16738 for ; Thu, 20 Jul 2000 13:37:31 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id NAA13820 for ; Thu, 20 Jul 2000 13:36:11 -0400 Date: Thu, 20 Jul 2000 13:36:11 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well, perhaps this is also a misconception, but I had been under the impression that any particular classically encrypted message could be broken sooner or later, although you may run into values of 'later' that exceed the projected lifetime of the universe or something. Poor security measures (e.g. reusing pads, or exposing plaintext and other channels of information) may dramatically shorten the time needed to decrypt a given message. Algorithms may be entirely reliable, OTOH. This doesn't make decryption impossible, just significantly harder. Is this all basically right, or am I incorrect here? On 20 Jul 2000, David A. Wagner wrote: > Yes, and I have a gripe about statements made, I think, at the trial: that > "every encryption algorithm will be broken, sooner or later". That's a > common misperception, but there are very good reasons to believe that it's > just not true. (Of course, there's a kernel of truth in there -- namely, > that designing secure encryption algorithms is very hard to get right -- > but that's very different, and in this case, the difference is important!) > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:39:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA17024 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:39:14 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA17021 for ; Thu, 20 Jul 2000 13:39:12 -0400 Received: by aero.org id <17119-2>; Thu, 20 Jul 2000 10:38:09 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdVZAa07933; Thu Jul 20 10:37:57 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 10:27:43 -0700 Subject: Re: [dvd-discuss] DVD update: more plaintiff witnesses today To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 10:27:41 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 20 Jul 2000 10:38:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The real question here is "WHAT am I buying when I buy a DVD?" A license to play it OR am I buying PERSONAL PROPERTY that also is copyright protected? The DVDs sit on shelves in stores near TVs, stereos, tape players, cameras, CDs, video tapes etc. In the Kmart near me they sit about a stones throw away from motor oils...all sorts of things I can buy and which LEGALLY become MY property....So what distinguishes the DVD from a pack of underwear in the market place? I know the answer the studios want - a license BUT they also want to sell it to me with all the ease and benefits of personal property. I contend they can't have it both ways. BTW - Has anybody considered organizing an economic boycott of DVDs? Say....for 1 week NOBODY buys DVDs. John Gilmore @eon.law.harvard.edu on 07/20/2000 12:33:21 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: cafe-news@eff.org cc: dvd-discuss@eon.law.harvard.edu, decss@lists.lemuria.org Subject: [dvd-discuss] DVD update: more plaintiff witnesses today EFF DVD Update: Wed, July 19, 2000 Universal City Studios v. 2600 Magazine Wednesday morning in the New York DVD trial began with continued examination of Marsha King, a VP in Time-Warner. She explained how terribly hurt the studios were by the mere loss of confidence in CSS, let alone the millions of dollars they could also potentially lose from illicit copying. She described her participation in creating the DVD format, deciding on security standards for it, and negotiating with the consumer electronics and computer industries on a common position (which was enshrined in the CSS and the CSS license agreements). Interestingly, Judge Kaplen refused to allow questioning in any area related to when and whether buyers of Warner DVDs receive the "authority of the copyright holder", which is a critical element of whether the buyer is circumventing when they play a DVD. The judge thought it was obvious, and eventually facetiously asked Ms. King whether Time-Warner authorized buyers to play their DVDs on players which have never signed a DVDCCA license, to which she said "No". But this begged the question of exactly how a consumer knows what authority they have been granted, where that authority is defined by a company, whether the company can change its mind later or for specific consumers, whether this authority is general or can have limitations such as "you are authorized to play this Sony movie only on Sony's DVD players", etc. It is our position that the authority to play a DVD is granted to the buyer at the time of purchase, without limitation. Any other reading of the statute produces chaos in the market, since after selling a single copy of a technically-protected work, any copyright owner would have the legal right to decide what players are permitted to exist in the entire market (by withdrawing their authority for some drives to play their work, and then suing drive distributors, as Time Warner sued 2600, to ban them as unauthorized circumventers). Prof. Franklin Fisher testified after lunch about the economics of markets when "free" (zero-price) goods are introduced into them. While his analysis was slightly interesting, it was all hypothetical, and was not based on any actual investigation into consumer or company behavior in the movie or DVD markets. Judge Kaplan cynically described it as the prosecuting hiring a distinguished chemistry professor to explain that when you put an icepick into a tire, the air comes out. The judge said he had already figured that out. [My own experience in running Cygnus Solutions, a successful free-software support company, indicates that what actually happens when you toss zero-price intellectual property into a market is much more interesting (and financially rewarding) than merely having the market all leak away, leaving no market. But it's clearly obvious what would happen, to many people who've never tried it; they're just wrong.] Thursday will begin with a defense witness, teenage Norwegian DeCSS programmer Jon Johansen at 9AM (out of order since he is leaving early). Jon will be followed by plaintiff witnesses Mikhail Reider of the MPAA anti-piracy unit, and then Bruce Boyden, who visited web sites such as 2600 to find copies of DeCSS on them. These are the final plaintiffs' witnesses. When they are finished (possibly on Friday), the defense will begin calling its witnesses, beginning with Ed Felton, who used DeCSS in teaching students of applied cryptography what can be learned by studying failed encryption systems. Then Emmanuel Goldstein, the defendant, publisher of 2600 magazine and long-time radio journalist will testify on his own behalf. We hope to see you there! An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ ------------------------------------------------------------------ The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:43:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18014 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:43:42 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA18011 for ; Thu, 20 Jul 2000 13:43:41 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id NAA14670; Thu, 20 Jul 2000 13:43:44 -0400 Message-ID: <39773A50.1959BAE4@mit.edu> Date: Thu, 20 Jul 2000 13:43:44 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. References: <39771B59.A106FC79@debian.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 Ron Gustavson wrote: > > I wrote: > > >My latest gripe is: given that they acknowledge this fact, isn't > >a security architecture that locks in a system from '94-5 a bad > >horse to choose? (especially a systerm which rewards the true > >pirates) > > > >Can most (or any) consumer DVD players have their firmware updated? > > Neverrmind: http://www.dvddemystified.com/dvdfaq.html#1.41 > > So, now I ask: why aren't we on CSS v. 8 by now? > > Does Microsoft were to run to Judge Kaplan every time a new macro- > virus appear? (perhaps they should considering the latest VBA alarm...) > > Sure they will have to maintain backward compatibility with CSS 1 titles-- > those have already been put at risk (from their point of view.) But I'll > be damned if the law can protect them from having to compete in this > day and age. > And this is another point Garbus is trying to make in court that the judge does not see. They are not _acting_ like DeCSS is this horrible threat that is going to destroy them. If it were they would stop (or at least slow down) the release of new CSS-encrypted DVDs, they would be rolling out a new protection system, and doing many things other than going to court. (This is not to say that they wouldn't go to court, but rather that their entire defense would not be legal.) In fact, they should have started doing these things the first time CSS was cracked (which was well before DeCSS if I am reading the court transcripts directly). The reason they are reacting now and in this way is because this is the first time their control over the player market has been threatened --- and that control is what they are interested in. Declaring DeCSS illegal will not significantly affect commercial piracy (and might well increase non-commerical piracy as a form of protest), but it would nail down their control of the player market. But Kaplan keeps saying what they knew and when they knew it is not relevant. He's wrong: it directly attacks the credibility of what they are saying in court. It would be like a town suing to shut down a factory for polluting its drinking water. Only none of the townspeople have stopped drinking the water since they discovered it was polluted. They're not investigating alternative sources of water or personal filters. And there are three other factories that have been releasing the same pollutant for years and they've done nothing about them. Maybe there's some other reason the townspeople want the factory shut down. Perhaps they can make more money granting limited permits to use the abandoned building... - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:51:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18075 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:51:25 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA18072 for ; Thu, 20 Jul 2000 13:51:23 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id NAA14701; Thu, 20 Jul 2000 13:51:27 -0400 Message-ID: <39773C1F.D2DE57EE@mit.edu> Date: Thu, 20 Jul 2000 13:51:27 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. References: <39771B59.A106FC79@debian.org> <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "David A. Wagner" wrote: > > Yes, and I have a gripe about statements made, I think, at the trial: that > "every encryption algorithm will be broken, sooner or later". That's a > common misperception, but there are very good reasons to believe that it's > just not true. (Of course, there's a kernel of truth in there -- namely, > that designing secure encryption algorithms is very hard to get right -- > but that's very different, and in this case, the difference is important!) Given that the MPAA is saying it is almost true. It all depends on what the word "encryption" means. Every encryption scheme that meets their requirements (no external source of authorization and software players, to start with) will almost certainly be broken unless they can convince people to accept locked-down hardware (sound and video cards to start with and probably speakers and monitors in the future). I used to think there was no way people would sit still for that. Then I discovered that I had not been paying enough attention and had bought a region-locked DVD-ROM drive myself. The revolution in Europe is encouraging, however. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:56:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18220 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:56:54 -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 NAA18217 for ; Thu, 20 Jul 2000 13:56:52 -0400 Message-ID: <20000720175532.19385.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 20 Jul 2000 10:55:32 PDT Date: Thu, 20 Jul 2000 10:55:32 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Here's a good site for info. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "David A. Wagner" wrote: > Yes, and I have a gripe about statements made, I think, at the trial: > that "every encryption algorithm will be broken, sooner or later". > That's a common misperception, but there are very good reasons > to believe that it's just not true. (Of course, there's a kernel of > truth in there -- namely, that designing secure encryption algorithms > is very hard to get right -- but that's very different, and in > this case, the difference is important!) I think Bruce Schneier will blow this out of the water when he testifies. If true, this statement would mean that e-commerce is fundamentally flawed and online banking should be immediately stopped. Hopefully, Schneier put it in perspective with something like: "if every atom of the universe (10^80 atoms) calculated 10^15 keys per second for the next quadrillion 10^15 years (<10^23 seconds), then it would search less than 1 part in 10^10 of the key space of a non-flawed 128-bit key length encryption algorighm. Thus a non-flawed algorithm will almost certainly not be broken during the remaining life of the univers, regardless of the advance of technology." Some references to algorithms which are widely believed to be non-flawed (RSA, Blowfish, etc...) because they have withstood decades of acedemic scrutiny under full disclosure conditions, should put this to rest. I'm sure the MPAA statements like the above will get the veins in Schneiers neck bulging. If anybody can authoritatively refute that point, it is Schneier. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 13:58:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA18352 for dvd-discuss-outgoing; Thu, 20 Jul 2000 13:58:26 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA18349 for ; Thu, 20 Jul 2000 13:58:24 -0400 Received: from ppp.anonymizer.com (c03-116.015.popsite.net [64.24.74.116]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id KAA01592 for ; Thu, 20 Jul 2000 10:59:44 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720104644.00a9a150@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 10:57:29 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Kaplan considers declatory judgment In-Reply-To: <20000720160544.3886.qmail@web511.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 09:05 AM 7/20/2000 -0700, Bryan Taylor wrote: >Here's an interesting dialouge where Kaplan asks King if he should make >a declatory judgement that posting DeCSS is illegal. Curious. Would >such a judgement bind someone who was outside of SDNY? Forgive a segue to another case, but it is on-topic. In the Cyber Patrol break case, the original authors of CPbreak (Jansson and Skala) settled, but an appeal to the First Circuit is being pursued by three mirror maintainers. A key issue is whether the permanent injunction applies to them, given that, under Federal Rule of Civil Procedure 65, all injunctions apply not only to the parties, but to: "their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." One issue, but not the only, is whether the injunction can apply outside of Massachusetts. The First Circuit granted ACLU's motion to expedite the appeal; appellate briefing is done; and oral argument is on August 2. Likely there will be no decision before Kaplan decides, but if Kaplan takes that road, good chance the CPbreak decision will have relevance to an appeal in the 2600 case. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 14:15:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19153 for dvd-discuss-outgoing; Thu, 20 Jul 2000 14:15:31 -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 OAA19150 for ; Thu, 20 Jul 2000 14:15:29 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id NAA18577 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 13:14:38 -0500 Date: Thu, 20 Jul 2000 13:14:37 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000720131437.A18545@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000720175532.19385.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: <20000720175532.19385.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Jul 20, 2000 at 10:55:32AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 20, 2000 at 10:55:32AM -0700, Bryan Taylor wrote: > > --- "David A. Wagner" wrote: > > Yes, and I have a gripe about statements made, I think, at the trial: > > that "every encryption algorithm will be broken, sooner or later". > > That's a common misperception, but there are very good reasons > > to believe that it's just not true. (Of course, there's a kernel of > > truth in there -- namely, that designing secure encryption algorithms > > > is very hard to get right -- but that's very different, and in > > this case, the difference is important!) > > I think Bruce Schneier will blow this out of the water when he > testifies. > > If true, this statement would mean that e-commerce is fundamentally > flawed and online banking should be immediately stopped. But the fact remains that if your goal is to design an encryption system that relies on a secret stored in the player, there's no way to create a system that can't be broken with a certain amount of reverse engineering. I don't think the plaintiffs are dumb enough to try and argue that "all encryption algorithms can be broken". If they argue "all secret-algorithm, secret-player-key encryption systems can be broken", they're absolutely correct. Your arguments are entertaining, but even Bruce will admit that if you use Blowfish with 128-bit keys to encrypt a DVD, handing out the key in the form of obfuscated player/disc/title key combinations ruins the security of the system. And that's why I don't see the relevance of the testimony regarding the fundamental weaknesses in CSS. Because even if they'd done it right, the algorithms and keys could still be found by reverse-engineering, and we'd all still be here. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 14:16:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA19219 for dvd-discuss-outgoing; Thu, 20 Jul 2000 14:16:40 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA19216 for ; Thu, 20 Jul 2000 14:16:39 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id NAA11840 for ; Thu, 20 Jul 2000 13:15:49 -0500 (CDT) Message-ID: <3977419B.EC2D7229@uic.edu> Date: Thu, 20 Jul 2000 13:14:51 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] King: Authority to decode CSS does not come from Warner! 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 Mr. Garbus questioning Ms. King on page 454: > 12 Q. Can Warner decide on its own to allow a company to play > 13 its DVDs without that company having a license from the > 14 DVD-CCA? > 15 A. No, not if we have encrypted the movie. > 16 Q. If you encrypted the movie and I created a player that > 17 could deencrypt that movie, could Warner sell that DVD to me? > 18 A. I think that would violate the license with DVD-CCA. Didn't she just say in essence that Warner, the copyright owner, does not have the authority to authorize the decryption of CSS; That only the DVD-CCA has? In that case, the permission to decrypt CSS comes not from the copyright owner, but from the DVD-CCA. Given that 1201 (a)(3)(B) seems to say that 1201 only protects technological measures whose authority stems from the copyright owner, shouldn't the fact that Warner has apparently either abdicated such authority, or more importantly never had such authority in the first place make CSS a non-1201 technological measure? - John From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 14:30:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20071 for dvd-discuss-outgoing; Thu, 20 Jul 2000 14:30:40 -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 OAA20067 for ; Thu, 20 Jul 2000 14:30:39 -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:2.21) with ESMTP id OAA16074 for ; Thu, 20 Jul 2000 14:29:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA19887; Thu, 20 Jul 2000 14:29:48 -0400 (EDT) Date: Thu, 20 Jul 2000 14:29:48 -0400 (EDT) Message-Id: <200007201829.OAA19887@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Newsgroups: isaac.lists.dvd-discuss In-Reply-To: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> References: <39771B59.A106FC79@debian.org> <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > Yes, and I have a gripe about statements made, I think, at the trial: that > "every encryption algorithm will be broken, sooner or later". That's a > common misperception, but there are very good reasons to believe that it's > just not true. It's false --- one-time pads are unbreakable. However, they are not practical for very many applications, certainly not for this one. However, once again, this is not directly relevant to the legal issues in the case --- the law's definition of "effective access control" says only what a measure must do "in the ordinary course of its operation", and nothing about how easily it may be diverted into a different course. Kaplan is well aware of this; I believe he's quoted this definition in open court. There is some indirect relevance, though --- if you want to argue that CSS is a market control measure, not an access control measure, the choice of a lousy cipher could back this up: "See, they didn't even *care* how good it was; it's obviously not for security." Perhaps this is what Garbus is getting at. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 14:33:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA20252 for dvd-discuss-outgoing; Thu, 20 Jul 2000 14:33:35 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA20249 for ; Thu, 20 Jul 2000 14:33:34 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id OAA14824; Thu, 20 Jul 2000 14:33:31 -0400 Message-ID: <397745FB.C878398A@mit.edu> Date: Thu, 20 Jul 2000 14:33:31 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! References: <3977419B.EC2D7229@uic.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 John Schulien wrote: > > Mr. Garbus questioning Ms. King on page 454: > > > 12 Q. Can Warner decide on its own to allow a company to play > > 13 its DVDs without that company having a license from the > > 14 DVD-CCA? > > > 15 A. No, not if we have encrypted the movie. > > > 16 Q. If you encrypted the movie and I created a player that > > 17 could deencrypt that movie, could Warner sell that DVD to me? > > > 18 A. I think that would violate the license with DVD-CCA. > > Didn't she just say in essence that Warner, the copyright > owner, does not have the authority to authorize the > decryption of CSS; That only the DVD-CCA has? > > In that case, the permission to decrypt CSS comes not > from the copyright owner, but from the DVD-CCA. Given > that 1201 (a)(3)(B) seems to say that 1201 only protects > technological measures whose authority stems from the > copyright owner, shouldn't the fact that Warner has > apparently either abdicated such authority, or more > importantly never had such authority in the first place > make CSS a non-1201 technological measure? > > - John I think you're right, but this is how they muddy the water: Warner doesn't own CSS. Toshiba and Matsushita developed CSS and they gave it to the DVD CCA. To get the CSS technology so they can produce CSS-encrypted DVDs they had to sign a contract with the DVD CCA. I don't think we've seen that contract, but one of the terms must be that they have granted to the DVD CCA the right to grant authority to player manufacturers to decrypt CSS-encrypted DVDs of Warner movies. All the exchange above suggests is tha the right Warner granted was an exclusive right (i.e. they can't grant anyone else the authority to decrypt CSS-encrypted Warner DVDs). The thing that makes this all fishy is that all of the major studios have signed such agreements with the DVD CCA. It looks like illegal collusion (in violation of the antitrust laws) to me. To Kaplan, I guess not (or, at best, not yet). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 16:07:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23574 for dvd-discuss-outgoing; Thu, 20 Jul 2000 16:07:11 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23571 for ; Thu, 20 Jul 2000 16:07:09 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FMaJ-0006Yh-00; Thu, 20 Jul 2000 13:06:19 -0700 Date: Thu, 20 Jul 2000 13:06:19 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Scour lawsuit Message-ID: <20000720130619.D594@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/1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Scour.com got sued today for contributory copyright infringement, or some similar theory. By the MPAA et al., in SDNY. Gee, I wonder if the MPAA likes SDNY or something. There are probably substantial linking issues there. -- 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 Jul 20 16:33:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24361 for dvd-discuss-outgoing; Thu, 20 Jul 2000 16:33:37 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24358 for ; Thu, 20 Jul 2000 16:33:35 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id MAA18620 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 12:45:04 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] here's another interesting story Date: Thu, 20 Jul 2000 12:43:58 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <0007201244550A.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David Boies is at it again. This may not help us much now but it sure could help down the road. http://news.cnet.com/news/0-1005-200-2295301.html?tag=st.ne.1002.tgif.ni --Russell -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 16:46:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25284 for dvd-discuss-outgoing; Thu, 20 Jul 2000 16:46:55 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25281 for ; Thu, 20 Jul 2000 16:46:53 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P6XC>; Thu, 20 Jul 2000 16:50:52 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E6F@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] no contract in sale Date: Thu, 20 Jul 2000 16:50:51 -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 8 THE COURT: But the facts are perfectly obvious. 9 There is no contract between Warner and the ultimate consumer. 10 Warner sells the disks to whomever they sell them to. Tower 11 buys them from somebody. 12 Tower then sells the disk to you or to whomever else 13 and whatever rights you acquire beyond the naked ownership of 14 the project, the hunk of plastic that constitutes the disk is 15 a function of the Copyright Act and the DMCA and whatever 16 other legislation is appropriate. Ah hah! When Garbus gets the chance to discuss the law as it pertains to this case, this is a great quote to begin the argument. "There is no contract between Time Warner and the ultimate consumer." "...whatever rights you acquire...is a function of the Copyright Act and the DMCA..." The problem is that everytime one party gets rights, another party loses rights. The parties in this case are the ultimate consumers and the movie studios. Under copyright law in absence of 1201, the defendents did nothing wrong. The question then becomes, does 1201 apply, if if yes, does 1201 make it illegal to distribute the programm known as DeCSS? I wish that the defense could call an expert witness on legal matters. I would be much more comfortable if a law professor was able to discuss the copyright and DMCA issues on the stand. Then Garbus could reinforce it. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 16:51:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25571 for dvd-discuss-outgoing; Thu, 20 Jul 2000 16:51:16 -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 QAA25568 for ; Thu, 20 Jul 2000 16:51:15 -0400 Message-ID: <20000720204954.529.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Thu, 20 Jul 2000 13:49:54 PDT Date: Thu, 20 Jul 2000 13:49:54 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Here's a good site for info. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Eric Seppanen wrote: > > I think Bruce Schneier will blow this out of the water when he > > testifies. > > > > If true, this statement would mean that e-commerce is fundamentally > > flawed and online banking should be immediately stopped. > > But the fact remains that if your goal is to design an encryption > system that relies on a secret stored in the player, there's > no way to create a system that can't be broken with a certain > amount of reverse engineering. All trusted client systems are inherently insecure. This I certainly agree with. Any reliance on them is only a form of security through obscurity, which is inherently doomed. The upshot, of course, is to choose a design that does not depend on this to work. > I don't think the plaintiffs are dumb enough to try and argue that > "all encryption algorithms can be broken". > > If they argue "all secret-algorithm, secret-player-key encryption > systems can be broken", they're absolutely correct. This would imply that if, say, RSA had kept it's algorithm secret, as opposed to providing full disclosure, then it would become capable of being broken. The point is how well can you keep a secret. If you are relying on obfuscating it in an executable program the answer is not very well. I think what you really mean to say is that trusted clients cannot guarantee secrecy of anything. > And that's why I don't see the relevance of the testimony regarding > the fundamental weaknesses in CSS. Because even if they'd done > it right, the algorithms and keys could still be found by > reverse-engineering, and we'd all still be here. Frank Stevensen has published an attack that does not require any prior knowledge of keys. He was able to do this because the algorithm is weak. His algorithm would work even if there was a method for keeping the keys secret. If the algorithm is weak, the keys become irrelevent. The whole point of encryption is that you want to make secrecy of the message as secure as secrecy of some controllable piece of information that can easily be changed if it is compromised. CSS fails badly at this. I'm not trying to say any of this helps the defense, but I don't think the Plaintiffs really understand security much. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 16:56:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25807 for dvd-discuss-outgoing; Thu, 20 Jul 2000 16:56:48 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25804 for ; Thu, 20 Jul 2000 16:56:46 -0400 Received: from ppp.anonymizer.com (c03-116.015.popsite.net [64.24.74.116]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id NAA24847 for ; Thu, 20 Jul 2000 13:58:09 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720135129.00b54b90@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 13:57:06 -0700 To: From: "James S. Tyre" Subject: Re: [dvd-discuss] Transcript quoting [no contract in sale] In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E6F@c100.clearway.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 Minor request. When quoting from transcripts, please give reference point - day, page number. Big help, thanks. Also, see note below on the substance of Leland's post. At 04:50 PM 7/20/2000 -0400, Leland Ray wrote: > 8 THE COURT: But the facts are perfectly obvious. > 9 There is no contract between Warner and the ultimate consumer. > 10 Warner sells the disks to whomever they sell them to. Tower > 11 buys them from somebody. > > 12 Tower then sells the disk to you or to whomever else > 13 and whatever rights you acquire beyond the naked ownership of > 14 the project, the hunk of plastic that constitutes the disk is > 15 a function of the Copyright Act and the DMCA and whatever > 16 other legislation is appropriate. > >Ah hah! When Garbus gets the chance to discuss the law as it pertains >to this case, this is a great quote to begin the argument. > >"There is no contract between Time Warner and the ultimate consumer." > >"...whatever rights you acquire...is a function of the Copyright Act >and the DMCA..." > > >The problem is that everytime one party gets rights, another party >loses rights. The parties in this case are the ultimate consumers >and the movie studios. > >Under copyright law in absence of 1201, the defendents did nothing >wrong. The question then becomes, does 1201 apply, if if yes, does >1201 make it illegal to distribute the programm known as DeCSS? > > >I wish that the defense could call an expert witness on legal >matters. I would be much more comfortable if a law professor was >able to discuss the copyright and DMCA issues on the stand. >Then Garbus could reinforce it. The purpose of an expert witness is to assist the trier of fact in determining factual matters outside the scope of knowledge of the average person. Expert witnesses are not used to testify about the law, regardless of whether it is a jury trial or, as here, a bench trial. The law is determined by the Judge. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:35:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28295 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:35:47 -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 RAA28292 for ; Thu, 20 Jul 2000 17:35:45 -0400 Message-ID: <20000720213426.20134.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Thu, 20 Jul 2000 14:34:26 PDT Date: Thu, 20 Jul 2000 14:34:26 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] no contract in sale 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 Exactly, this is a big accomplishment. As someone else noted, Kaplan will not as part of any "finding of fact" decide when authorization occurs. This is great, because it puts a burden on the Plaintiffs to show that they can legally retain the right to control access beyond First Sale. As to expert witnesses on the law, that's sort of what the Appeals Courts are for. And yes, I think Kaplan could benefit from some expert advice on the law :-] --- Leland Ray wrote: > > 8 THE COURT: But the facts are perfectly obvious. > 9 There is no contract between Warner and the ultimate > consumer. > 10 Warner sells the disks to whomever they sell them to. Tower > 11 buys them from somebody. > > 12 Tower then sells the disk to you or to whomever else > 13 and whatever rights you acquire beyond the naked ownership of > 14 the project, the hunk of plastic that constitutes the disk is > 15 a function of the Copyright Act and the DMCA and whatever > 16 other legislation is appropriate. > > Ah hah! When Garbus gets the chance to discuss the law as it pertains > to this case, this is a great quote to begin the argument. > > "There is no contract between Time Warner and the ultimate consumer." > > "...whatever rights you acquire...is a function of the Copyright Act > and the DMCA..." > > The problem is that everytime one party gets rights, another party > loses rights. The parties in this case are the ultimate consumers > and the movie studios. > > Under copyright law in absence of 1201, the defendents did nothing > wrong. The question then becomes, does 1201 apply, if if yes, does > 1201 make it illegal to distribute the programm known as DeCSS? > > I wish that the defense could call an expert witness on legal > matters. I would be much more comfortable if a law professor was > able to discuss the copyright and DMCA issues on the stand. > Then Garbus could reinforce it. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:38:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28588 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:38:43 -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 RAA28585 for ; Thu, 20 Jul 2000 17:38:42 -0400 Message-ID: <20000720213723.16170.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 20 Jul 2000 14:37:23 PDT Date: Thu, 20 Jul 2000 14:37:23 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] here's another interesting story 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 --- Jim Miller wrote: > David Boies is at it again. This may not help us much now but it > sure could help down the road. > > http://news.cnet.com/news/0-1005-200-2295301.html?tag=st.ne.1002.tgif.ni Actually, I hope Garbus will make a similar argument in this case. It is, I think, a pretty strong argument, AND it'll put the antitrust stuff front and center. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:40:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28649 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:40:48 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28646 for ; Thu, 20 Jul 2000 17:40:46 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA28317 for ; Thu, 20 Jul 2000 14:39:54 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA19859; Thu, 20 Jul 2000 14:38:05 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 14:36:58 -0700 Organization: A poorly-installed InterNetNews site Lines: 31 Distribution: isaac Message-ID: <8l7rdq$jci$1@blowfish.isaac.cs.berkeley.edu> References: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Joshua Stratton wrote: > Well, perhaps this is also a misconception, but I had been under the > impression that any particular classically encrypted message could be > broken sooner or later, although you may run into values of 'later' that > exceed the projected lifetime of the universe or something. Nope. Still wrong. There exists provably unbreakable encryption schemes (the one-time pad); it's just that they happen not to be very useful in practice. Anyway, forgetting all those theoretical nitpicks, I'll certainly admit that your statement is much closer to the truth, but phrasing it the way you did contributes to the misconception. People later repeat this, without the caveat about "values of 'later'", and you end up with stuff like: Every encrypted message can be broken sooner or later. Uninformed people then hear this and think "sooner = 1 day; later = 1 year", and assume it's impossible to build secure encryption, so why bother? Or: Who cares if CSS is insecure, everything gets broken sooner or later, so who cares if the studios did a shamefully shoddy job in the design of CSS? Note that, if I remember the statements at trial correctly, it _was_ indeed stated as "can be broken sooner or later" without warning that later might exceed the life of the universe. This gives a very wrong impression, It's this misinformed attitude which is very damaging, and it can lead you to some very wrong conclusions. I sincerely that this does not happen in this court case. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:43:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28694 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:43:16 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28691 for ; Thu, 20 Jul 2000 17:43:15 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA28338 for ; Thu, 20 Jul 2000 14:42:23 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA19881; Thu, 20 Jul 2000 14:40:33 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 14:40:24 -0700 Organization: A poorly-installed InterNetNews site Lines: 14 Distribution: isaac Message-ID: <8l7rk8$jd8$1@blowfish.isaac.cs.berkeley.edu> References: <39771B59.A106FC79@debian.org> <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> <39773C1F.D2DE57EE@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > Given that the MPAA is saying it is almost true. It all depends on > what the word "encryption" means. Every encryption scheme that > meets their requirements (no external source of authorization and > software players, ^^^^^^^^^^^^^^^^ Ahh, there's your mistake, right there! I -- and many other cryptographers -- have been saying for some time that, if you want copy protection, you certainly can't build software players. Security goes right out the window if you build software players. Period. Hollywood may not want to hear that, but you don't always get what you want. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:44:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29042 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:44:56 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA29039 for ; Thu, 20 Jul 2000 17:44:55 -0400 Received: from ppp.anonymizer.com (c03-116.015.popsite.net [64.24.74.116]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id OAA00768 for ; Thu, 20 Jul 2000 14:46:17 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720144401.00a9b520@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 14:45:14 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Scour lawsuit In-Reply-To: <20000720130619.D594@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 01:06 PM 7/20/2000 -0700, Seth David Schoen wrote: >Scour.com got sued today for contributory copyright infringement, or >some similar theory. By the MPAA et al., in SDNY. Gee, I wonder if >the MPAA likes SDNY or something. > >There are probably substantial linking issues there. Press release, Complaint, other stuff at http://www.mpaa.org/Press/content.htm -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 17:50:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA30015 for dvd-discuss-outgoing; Thu, 20 Jul 2000 17:50:45 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA30012 for ; Thu, 20 Jul 2000 17:50:43 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA28384 for ; Thu, 20 Jul 2000 14:49:51 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA19912; Thu, 20 Jul 2000 14:48:02 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 14:47:53 -0700 Organization: A poorly-installed InterNetNews site Lines: 30 Distribution: isaac Message-ID: <8l7s29$je7$1@blowfish.isaac.cs.berkeley.edu> References: <39771B59.A106FC79@debian.org> <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> <200007201829.OAA19887@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 wrote: > However, once again, this is not directly relevant to the legal issues > in the case --- the law's definition of "effective access control" > says only what a measure must do "in the ordinary course of its > operation", and nothing about how easily it may be diverted into a > different course. Kaplan is well aware of this; I believe he's quoted > this definition in open court. Yes, but if you read the transcript, it appears that Garbus is pointing this out to show that the MPAA's claims of harm are off the mark, and not to argue the "effective" word. After all, if the MPAA really worried about the harm, there are things they could have done to fix the weak cipher! If they knew about the weaknesses in 1997 (and, although I hadn't known this, apparently noone is disputing that they did know about the flaw as far back as 1997), they could have spent the past 3 years fixing the problem! If this was really so dangerous to their business model, they could have done something. Instead, Hollywood did nothing. I agree that arguing that CSS is insecure and thus does not qualify as "effective access control" would be foolish, and Kaplan recognizes this, but I don't think this is what Martin Garbus is driving at. By the way, here's one more argument I _haven't_ seen. If CSS really was shamefully shoddy workmanship, and if the DeCSS source code is the smoking gun that shows the world just what a terribly lousy job Hollywood did in designing CSS, maybe DeCSS should be specially protected by the First Amendment to the extent that it fulfills this expressive role! From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:00:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30498 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:00:13 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30495 for ; Thu, 20 Jul 2000 18:00:12 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id OAA28488 for ; Thu, 20 Jul 2000 14:59:20 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id OAA19938; Thu, 20 Jul 2000 14:57:31 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 14:57:22 -0700 Organization: A poorly-installed InterNetNews site Lines: 20 Distribution: isaac Message-ID: <8l7sk2$jf1$1@blowfish.isaac.cs.berkeley.edu> References: <20000720175532.19385.qmail@web514.mail.yahoo.com> <20000720131437.A18545@thud.reric.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Seppanen wrote: > And that's why I don't see the relevance of the testimony regarding the > fundamental weaknesses in CSS. Because even if they'd done it right, the > algorithms and keys could still be found by reverse-engineering, and we'd > all still be here. No, not at all. Not if Hollywood hadn't made software players available! The cryptographers I know were pretty amazed when Hollywood announced that DVD would be secure, and oh yes, they'd be making software players. Sadly incompatible, those two are. I know I was taken aback at that decision. It makes Hollywood's public denunciations of "oh, those evil hackers" look like little more than lip service; if they truly cared about security, why would they make software players available? Weren't they paying attention to the copy protection efforts in the mid-80's? If they were, they evidently didn't learn the lesson of that era! Then again, maybe it's a case of mere ignorance, which at least is curable. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:10:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30952 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:10:17 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30949 for ; Thu, 20 Jul 2000 18:10:15 -0400 Received: by aero.org id <17097-4>; Thu, 20 Jul 2000 15:09:16 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdFPAa08405; Thu Jul 20 15:09:09 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 15:07:10 -0700 Subject: Re: [dvd-discuss] Here's a good site for info. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 03:07:07 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 20 Jul 2000 15:09:14 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu True but look at it from their view point. They can sell you this wonderful computer appliance that has a TV tuner, DVD player, CDROM player, game console, typewriter, telephone, telegraph, teletype. Obviously they are giving you all these wonderful things, why do you want to write programs for it or play around with it. You should be content to have the wonderful things they give you and just give up any ideas you might have of using it for anything other than the ways they want you to use it...And Shame on you for buying that CDROM burner we'll see about stopping that one next... [smiling winky happy face omitted] "Security goes right out the window if you build software players. Period." Absolutely. Given the level of "technology" in the CSS [Gee did they ever read the IEEE transactions of 20yrs AGO!] , I suspect they would have missed that one too Although the issue isn't security. It's really C O N T R O L. daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/20/2000 02:43:35 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Here's a good site for info. Ravi Nanavati wrote: > Given that the MPAA is saying it is almost true. It all depends on > what the word "encryption" means. Every encryption scheme that > meets their requirements (no external source of authorization and > software players, ^^^^^^^^^^^^^^^^ Ahh, there's your mistake, right there! I -- and many other cryptographers -- have been saying for some time that, if you want copy protection, you certainly can't build software players. Security goes right out the window if you build software players. Period. Hollywood may not want to hear that, but you don't always get what you want. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:20:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31339 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:20:33 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31336 for ; Thu, 20 Jul 2000 18:20:32 -0400 Received: by aero.org id <17110-4>; Thu, 20 Jul 2000 15:19:35 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKSAa08405; Thu Jul 20 15:19:26 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 15:19:19 -0700 Subject: Re: [dvd-discuss] Here's a good site for info. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 03:19:18 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 20 Jul 2000 15:19:32 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu They didn't read the IEEE transactions on circuits, why should they have studied the 80's copy protection? I suspect that they saw a market (= playing DVDs on computers) dreamed of all the money they could make and didn't realize that a computer isn't just another appliance. It can be programmed. I don't know if you've read any of the depositions but the ones of Stevenson and Profs. Appel and Simons really annoyed me. I almost got the impression that the plaintiff attourneys believed that anyone who knows how to read object code MUST be a criminal ("Professor can YOU read object code?") daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/20/2000 03:00:30 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Here's a good site for info. Eric Seppanen wrote: > And that's why I don't see the relevance of the testimony regarding the > fundamental weaknesses in CSS. Because even if they'd done it right, the > algorithms and keys could still be found by reverse-engineering, and we'd > all still be here. No, not at all. Not if Hollywood hadn't made software players available! The cryptographers I know were pretty amazed when Hollywood announced that DVD would be secure, and oh yes, they'd be making software players. Sadly incompatible, those two are. I know I was taken aback at that decision. It makes Hollywood's public denunciations of "oh, those evil hackers" look like little more than lip service; if they truly cared about security, why would they make software players available? Weren't they paying attention to the copy protection efforts in the mid-80's? If they were, they evidently didn't learn the lesson of that era! Then again, maybe it's a case of mere ignorance, which at least is curable. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:21:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31390 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:21:28 -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 SAA31387 for ; Thu, 20 Jul 2000 18:21:27 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 13FOVv-0007DH-00 for ; Thu, 20 Jul 2000 17:09:55 -0500 Date: Thu, 20 Jul 2000 17:09:55 -0500 (CDT) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Effective... In-Reply-To: <8l7s29$je7$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I know we've been over this a little bit - but I feel that we are missing something here. I know in the trial transcript, Kaplan is treating the word "Effective" almost as an intent. Thus, if the copyright owner "intents" for CSS to be an access control mechanism, then it is one. By the same token, someone printing text on the screen "upside-down" (intending for it to be a TPM) might be able to sue under 1201 (a) anyone smart enough to turn the monitor right-side up! I realize this is an extreme example. I just wonder how that interpretation could be used in such a way without making nearly everything in our world "illegal" to distribute under the DMCA. There has got to be a way to attack this! Surely Congress didn't intend siht ot eb na ssecca lortnoc! There has to be some threshold of responsibility that Congress expected the copyright owner to achieve before a TPM is given protection! The bottom line is that sending the keys with the lock in the same package (the DVD), does not even meet a resonable threshold of responsibility! I think the key line of questioning we need here is: Is a lock secure if it is distributed with its keys? Is a safe an effective way to protect access to your property - if the combination is engraved in the door? How could the MPAA expect the DVD player keys to remain a secret when they sold a copy of the keys on each and every one of the 10 million DVDs in circulation today? That's not "access control" at all! Each and every DVD is the content, the lock that protects the content, and the key. Maybe this rant doesn't make sense from a legal perspective - but it sure is scary to think of the kinds of things copyright owners can do with a legal interpretation of the DMCA like this... =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 20 Jul 2000 18:39:38 -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:2.21) with ESMTP id SAA15605 for ; Thu, 20 Jul 2000 18:38:49 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id SAA21629; Thu, 20 Jul 2000 18:38:48 -0400 (EDT) Date: Thu, 20 Jul 2000 18:38:48 -0400 (EDT) Message-Id: <200007202238.SAA21629@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Newsgroups: isaac.lists.dvd-discuss In-Reply-To: <8l7rdq$jci$1@blowfish.isaac.cs.berkeley.edu> References: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> <8l7rdq$jci$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner writes: > Joshua Stratton wrote: > > Well, perhaps this is also a misconception, but I had been under the > > impression that any particular classically encrypted message could be > > broken sooner or later, although you may run into values of 'later' that > > exceed the projected lifetime of the universe or something. > > ...People later repeat this, without the caveat about "values of 'later'", > and you end up with stuff like: > Every encrypted message can be broken sooner or later. > Uninformed people then hear this and think "sooner = 1 day; later = 1 year", > and assume it's impossible to build secure encryption, so why bother? Further nitpick --- the real value of 'later' is "until the heat-death of the Universe, *or* until someone discovers a fundamental flaw in the encryption scheme, whichever comes first". Regardless, the plaintiffs have a likely answer to all of this, which is that so long as they've fulfilled the statutory requirements, they thought they could rely on the courts for protection --- to quote Kaplan in the preliminary injunction hearing, the moat around their content is "filled with litigators, not alligators". Which doesn't sound so good to us techies, but they're telling it to a fairly sympathetic judge. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:46:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA32322 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:46:11 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA32319 for ; Thu, 20 Jul 2000 18:46:09 -0400 Received: by aero.org id <17100-2>; Thu, 20 Jul 2000 15:45:10 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdNAAa17578; Thu Jul 20 15:45:03 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 15:43:46 -0700 Subject: Re: [dvd-discuss] Effective... To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 03:43:42 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 20 Jul 2000 15:45:10 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu YOu've raised the interesting technical point regarding what level qualifies as an access control. On a more fundamental level: I started to read your MPAA FAQ rebuttal....the lock pick analogy that they have been using is obviously false but you have to give Valenti credit-it's one that NONTECHNICAL people can understand..or rather think they can. That's classic propaganda. Take a complicated idea, simplfy and repeat,repeat, repeat. What Valenti DOESN"T state is what are the accesses that are being controlled. What I seem to be missing is just what accesses are we trying to control? Tim Neu @eon.law.harvard.edu on 07/20/2000 03:21:35 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Effective... I know we've been over this a little bit - but I feel that we are missing something here. I know in the trial transcript, Kaplan is treating the word "Effective" almost as an intent. Thus, if the copyright owner "intents" for CSS to be an access control mechanism, then it is one. By the same token, someone printing text on the screen "upside-down" (intending for it to be a TPM) might be able to sue under 1201 (a) anyone smart enough to turn the monitor right-side up! I realize this is an extreme example. I just wonder how that interpretation could be used in such a way without making nearly everything in our world "illegal" to distribute under the DMCA. There has got to be a way to attack this! Surely Congress didn't intend siht ot eb na ssecca lortnoc! There has to be some threshold of responsibility that Congress expected the copyright owner to achieve before a TPM is given protection! The bottom line is that sending the keys with the lock in the same package (the DVD), does not even meet a resonable threshold of responsibility! I think the key line of questioning we need here is: Is a lock secure if it is distributed with its keys? Is a safe an effective way to protect access to your property - if the combination is engraved in the door? How could the MPAA expect the DVD player keys to remain a secret when they sold a copy of the keys on each and every one of the 10 million DVDs in circulation today? That's not "access control" at all! Each and every DVD is the content, the lock that protects the content, and the key. Maybe this rant doesn't make sense from a legal perspective - but it sure is scary to think of the kinds of things copyright owners can do with a legal interpretation of the DMCA like this... =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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, 20 Jul 2000 18:49:59 -0400 Received: from jy01 (user-2inig5g.dialup.mindspring.com [165.121.64.176]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id SAA11516 for ; Thu, 20 Jul 2000 18:49:08 -0400 (EDT) Message-Id: <200007202249.SAA11516@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 20 Jul 2000 18:43:59 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jon Johansen was a superb witness. Clear minded, articulate, informed, direct, no hesitations, about as good as it gets. He's now heading for Norway. Second highlight was when Kaplan asked MPAA's anti-piracy head what did she think could be done to help her job if he found in the plaintiffs' favor that was not already available for use under DMCA. He read the criminal penalities provided under DMCA, and asked the question again: how would it help anti-piracy to win the case, to get a permanent injunction against DeCSS. He said no injunction is going to make worldwide copies of DeCSS disappear. He said, "look, we all know the horse is out of the barn, DeCSS is all over the world, and nothing I can do can change that. Sure, the barn can be locked now but the DeCSS horse is gone. What I do might help prevent another horse from escaping but not DeCSS." Third highlight was during Ed Felton's testimony when Judge Kaplan said he wanted to tell Ed his view of the difference between source code and object code and get Ed's opinion about its accuracy. He then did a pretty darn good description, and Ed said that is correct, and paused professorly. Kaplan leaned back satisfied. Then Ed went back to describing code the way a genuine expert does -- with shading, nuances, ambiguities, variations, doubts, confusions, arguments, disagreements, competition, errors, experiments, evolutions, reversals, all the stuff learned researchers know and remain unsettled about. Then said that is why we need maximum freedom to reverse engineer, hack, crack, violate and recreate products hiding as intellectual properties. Fourth highlight was seeing a lot of people meet Shawn Reimerdes, then repeat his infamous phrase. Fifth highlight was Emmanuel reading sample stories from 2600 -- the headlines promised violations to law and order, yet he said this, too, is information, for the public has a right to have it for their own privacy protection against "evil corporations." Kaplan said a live feed of the proceedings is still being looked into. A court official said that the Chief Administrative Judge will have to make the call. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 18:55:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00438 for dvd-discuss-outgoing; Thu, 20 Jul 2000 18:55:56 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA00435 for ; Thu, 20 Jul 2000 18:55:55 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id RAA22506 for ; Thu, 20 Jul 2000 17:55:06 -0500 (CDT) Message-ID: <39778311.7510A1F3@uic.edu> Date: Thu, 20 Jul 2000 17:54:09 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Effective 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 Yet another problem with the law. > No person shall circumvent a technological > measure, that effectively controls access to a > work protected under this title Ok ... so does this mean: 1) No person shall circumvent a technological measure, that, IN EFFECT, controls access to a work protected under this title or maybe 2) No person shall circumvent a technological measure, that DOES A GOOD JOB of controlling access to a work protected under this title. Garbus' line of questioning on day 3, and a lot of the discussion here leads me to believe that he is shooting for interpretation two. I think that this line of reasoning is not a good approach, for a couple of reasons and should be abandoned. First off, CSS did a good job for a long time. It's going to be hard pressed to convince the judge that just because it's cracked, that it wasn't "effective" enough to qualify for 1201 protection. Second, as a practical consideration, interpreting the law that way basically nullifies 1201. 1201 was not written to create a reward for figuring out encryption puzzles, and no judge is going to buy into such an interpretation. 1201 was obviously intended to prohibit SOME sort of circumvention ... the job of the defense has to be to find a limitation on what sorts of measures fall under 1201, and make the argument that this particular one doesn't. Finally, the statute answers the question. (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. which has the problem that it is incredibly broad. You could make the argument that a phonograph record meets this requirement because it requires a specific piece of equipment in order to do its job. In the streambox case, the court decided that a single bit was an "effective" measure. So, I just don't see where the defense is going with this line of reasoning. If anything, having the law interpreted in this way would be a long-term loss, because under those conditions, the obvious response of the movie industry will be to produce a system with much stronger encryption, which will then be broken, and the industry will have a new argument -- they will claim that the encryption system they used was absolutely state of the art, and since our "win" would be based on the theory that only "good" systems are protected by 1201, they will argue that their new system was in fact "good enough", and probably win on the wrong grounds. It's a flawed theory -- bad for both sides. The only intellectually honest approach I can see in this is to try and obtain an interpretation of the law that says that 1201 cannot be enforced in any situation where it would eliminate fair use. The argument should go: 1) In absence of 1201, would it be fair use to do the following things: Extract a 10 second clip from a commercially purchased DVD for purposes of education, criticism, etc. Buy a DVD, make a single copy of it, and put the DVD in a closet. Let the kids use the copy, and if they destroy it, make another copy. Extract your favorite sound bite from your favorite DVD and make it your windows startup sound. Etc etc. All of these would be fair use if, at the very least, you had legitimate access to the film via first sale. This was settled with Betamax. Under this theory, it would probably be illegal to build a cable descrambler to obtain "access" to a work, but legal to, for instance, purchase a DVD, and extract the work from it. Once you establish that, in the absence of 1201, DeCSS would have fair use purposes, then you go to c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. and then ask the question, how can it be that fair use for DVDs can be abolished by a law that specifically states that it does not affect fair use? I can't think of a more compelling argument for restricting 1201 to technologies that control initial access to works, as opposed to sham systems like CSS that attempt to muscle in on fair use by adding a pretextual cipher/decipher exercise to the hardware. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:05:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01393 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:05:50 -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 TAA01390 for ; Thu, 20 Jul 2000 19:05:49 -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:2.21) with ESMTP id TAA17812 for ; Thu, 20 Jul 2000 19:05:00 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA21802; Thu, 20 Jul 2000 19:04:59 -0400 (EDT) Date: Thu, 20 Jul 2000 19:04:59 -0400 (EDT) Message-Id: <200007202304.TAA21802@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Effective In-Reply-To: <39778311.7510A1F3@uic.edu> References: <39778311.7510A1F3@uic.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > Yet another problem with the law. > > > No person shall circumvent a technological > > measure, that effectively controls access to a > > work protected under this title > > Ok ... so does this mean: > > 1) No person shall circumvent a technological > measure, that, IN EFFECT, controls access > to a work protected under this title [or...] > > 2) No person shall circumvent a technological > measure, that DOES A GOOD JOB of > controlling access to a work protected > under this title. The applicable definitions of "circumvent" and "effectively control access to a work" are given in the law itself, 1201(a)(3)(A) and (B). The definition of "effectively control..." says only what a technological measure must do "in the ordinary course of its operation", so AFAICS, 1) is correct and, 2) is not. Kaplan has already quoted the law to this effect in court, IIRC. Which leads some of us to believe that Garbus is actually getting at something else entirely --- possibly the pretextual nature of the scheme ("it isn't really access control, and they didn't even try to make it look good"), or the lack of damages in the case ("they didn't really expect this stuff to stay secure anyway"). rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:07:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01486 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:07:28 -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 TAA01483 for ; Thu, 20 Jul 2000 19:07:26 -0400 Message-ID: <20000720230607.2278.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Thu, 20 Jul 2000 16:06:07 PDT Date: Thu, 20 Jul 2000 16:06:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 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 --- John Young wrote: > Jon Johansen was a superb witness. Clear minded, > articulate, informed, direct, no hesitations, about as > good as it gets. He's now heading for Norway. Did Jon do well on the windows program vs LiViD question? Did he sound credible regarding the reverse engineering? What did the MPAA cross him on? > He said, "look, we all know the horse is out of the barn, > DeCSS is all over the world, and nothing I can do can > change that. Sure, the barn can be locked now but the > DeCSS horse is gone. What I do might help prevent > another horse from escaping but not DeCSS." This is frightening. > Fifth highlight was Emmanuel reading sample stories > from 2600 -- the headlines promised violations > to law and order, yet he said this, too, is information, > for the public has a right to have it for their own privacy > protection against "evil corporations." How did he do at defending his "access to information" theme? How did he do under cross? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:10:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA01542 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:10:41 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA01539 for ; Thu, 20 Jul 2000 19:10:40 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id SAA23596 for ; Thu, 20 Jul 2000 18:09:51 -0500 (CDT) Message-ID: <39778688.BAFF10D5@uic.edu> Date: Thu, 20 Jul 2000 18:08:56 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can't wait to read this. John Young writes that Kaplan asks: > how would it help anti-piracy to win the case, > to get a permanent injunction against DeCSS. > He said no injunction is going to make > worldwide copies of DeCSS disappear. and > [Kaplan] said, "look, we all know the horse is out of > the barn, DeCSS is all over the world, and nothing > I can do can change that. Sure, the barn can be > locked now but the DeCSS horse is gone. What I > do might help prevent another horse from escaping > but not DeCSS." which shows that Kaplan understands that something fishy is going on here, but I don't think that he has, or wants to put two and two together. The MPAA is spending a lot of money on this trial -- they apparently spent some $16,000 to hire an expert witness to say that people prefer free things, and they are fighting this case to the death for SOME reason. I hope it's beginning to puzzle Kaplan as to why. One possible reason for the MPAA pursuing this case to the death is that besides deciding the fate of 2600's right to link to DeCSS, Kaplan is also deciding, in effect, whether or not it is legal to produce an non-DVD-CCA licensed player, because DeCSS is the critical component of such an unlicensed player. If the answer is "DeCSS is legal", then expect DVD players to pop up with digital outputs and no Macrovision. If the answer is "DeCSS in any form is illegal", then the DVD-CCA has achieved perpetual patent-like protection on DVD players, which would be worth billions of dollars over the lifetime of the DVD format. That's the real stakes. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:31:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02274 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:31:14 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA02271 for ; Thu, 20 Jul 2000 19:31:13 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id SAA24745 for ; Thu, 20 Jul 2000 18:30:24 -0500 (CDT) Message-ID: <39778B59.F72CD3F4@uic.edu> Date: Thu, 20 Jul 2000 18:29:29 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA v. 2600 - Day 4 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 > [Kaplan] said, "... What I do might help prevent > another horse from escaping but not DeCSS." ... which is completely wrong. Nothing he says or does will prevent the next horse from escaping, or aid its escape. He is, however, determining whether escaped horses are outlaw horses, or liberated horses. "Escaped horses" meaning "trade secrets discovered through reverse engineering." I think that the pre-1201 answer would be, "liberated horses." I hope he doesn't think that his decision will change the behavior of 16 year olds the world over ... is he a parent? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:42:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02712 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:42:06 -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 TAA02709 for ; Thu, 20 Jul 2000 19:42:05 -0400 Message-ID: <20000720234046.5553.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Thu, 20 Jul 2000 16:40:46 PDT Date: Thu, 20 Jul 2000 16:40:46 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Effective 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 --- John Schulien wrote: > 2) No person shall circumvent a technological > measure, that DOES A GOOD JOB of > controlling access to a work protected > under this title. > > Garbus' line of questioning on day 3, and a lot > of the discussion here leads me to believe that > he is shooting for interpretation two I think what Garbus is really trying to show is that the MPAA knew they had a weak system and did nothing, thereby worsening the harms. In essence, the MPAA failed to mitigate the damage. Remember that all cryptology depends on knowing a secret, usually called the key. If the algorithm is strong and the key's secrecy is compromised, a good system will allow you to minimize the damage by simply generating a new key. However, because the algorithm is itself weak, and the MPAA did nothing, they must take their share of responsibility for the fact that CSS, even if all keys are changed, is useless. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:47:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02801 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:47:36 -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 TAA02798 for ; Thu, 20 Jul 2000 19:47:35 -0400 Received: from jy01 (user-2inig5g.dialup.mindspring.com [165.121.64.176]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id TAA12107 for ; Thu, 20 Jul 2000 19:46:45 -0400 (EDT) Message-Id: <200007202346.TAA12107@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Thu, 20 Jul 2000 19:42:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <20000720230607.2278.qmail@web514.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 Bryan, I appreciate that you want more legal meat, but I'm not that an apt reporter as you've seen. Better to read the transcript than any summary. Eddan at EFF will have today's up in a few hours. BTW, Kaplan asked in court what the status was of 2600's appeal of his denial of the recusal motion. Garbus answered: the appeal had been denied. Is it customary for the appellant to know before the judge, or was Kaplan just rubbing it in? The courtroom was packed at the end of the day, after beginning at about half-filled. People who looked like lawyers coming in as if the word is spreading this is worth hearing. And it is: Kaplan said this is his first computer case and he is learning as fast as he can. That's why Jon's testimony was compelling: he seemed to be totally the master of reverse engineering, with nothing else to clutter his mind, you know, the FUD choking anybody between 17 and 65. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:50:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02966 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:50:19 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA02963 for ; Thu, 20 Jul 2000 19:50:18 -0400 Received: by aero.org id <17092-3>; Thu, 20 Jul 2000 16:49:25 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa22978; Thu Jul 20 16:49:21 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 16:49:10 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 04:49:06 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 20 Jul 2000 16:49:23 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think you may be right about Kaplan beginning to sense something is fishy. He does have a background in AntiTrust and if he really does have no conflict of interest here, he may be sensing that this is actually a Trust in operation. As he pointed out. Time-Warner doesn't sell the DVD. They have someone else do that. They license CSS from an organization that they are a member. The manufacterers license it from the same. What he may be sensing is a closed group of people trying to have extreme C O N T R O L which is characteristic of Trusts. What they want is to demonstrate their power and control. What he may also be asking himself is "What will the MPAA get from 2600 if they get their verdict?" - They haven't been able to prove ANY damages that are compensable. (That's one thing Garbus is driving at with his "Can you prove ANYBODY ANYWHERE AT ANYTIME DID IT?") So they aren't going to get much money. I doubt that the defendants have enough to pay for any of the experts MPAA is putting on the stands. They can't stop DeCSS from spreading [it might have been even more amusing if the DeCSS had gotten its dissemination through floppy disk and the USPS or Deutsches Bundes Post.] and the MPAA can't go after only one person if 30,000 others are also culpable. Now if they lose.....the mighty MPAA has been defeated by a 17yr old from Norway and a magazine editor... John Schulien @eon.law.harvard.edu on 07/20/2000 04:10:52 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 I can't wait to read this. John Young writes that Kaplan asks: > how would it help anti-piracy to win the case, > to get a permanent injunction against DeCSS. > He said no injunction is going to make > worldwide copies of DeCSS disappear. and > [Kaplan] said, "look, we all know the horse is out of > the barn, DeCSS is all over the world, and nothing > I can do can change that. Sure, the barn can be > locked now but the DeCSS horse is gone. What I > do might help prevent another horse from escaping > but not DeCSS." which shows that Kaplan understands that something fishy is going on here, but I don't think that he has, or wants to put two and two together. The MPAA is spending a lot of money on this trial -- they apparently spent some $16,000 to hire an expert witness to say that people prefer free things, and they are fighting this case to the death for SOME reason. I hope it's beginning to puzzle Kaplan as to why. One possible reason for the MPAA pursuing this case to the death is that besides deciding the fate of 2600's right to link to DeCSS, Kaplan is also deciding, in effect, whether or not it is legal to produce an non-DVD-CCA licensed player, because DeCSS is the critical component of such an unlicensed player. If the answer is "DeCSS is legal", then expect DVD players to pop up with digital outputs and no Macrovision. If the answer is "DeCSS in any form is illegal", then the DVD-CCA has achieved perpetual patent-like protection on DVD players, which would be worth billions of dollars over the lifetime of the DVD format. That's the real stakes. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:50:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02981 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:50:51 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA02978 for ; Thu, 20 Jul 2000 19:50:50 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id QAA28993 for ; Thu, 20 Jul 2000 16:49:58 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id QAA20162; Thu, 20 Jul 2000 16:48:09 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Effective... Date: 20 Jul 2000 16:48:00 -0700 Organization: A poorly-installed InterNetNews site Lines: 64 Distribution: isaac Message-ID: <8l833g$jm1$1@blowfish.isaac.cs.berkeley.edu> References: <8l7s29$je7$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. Read the DMCA. It seems unlikely that it would protect something as simplistic as upside-down letters. The DMCA requires things like a process performed with the authority of the copyright holder, etc. If there's no tie to a copyrighted work, or to a copyright holder's authority, it's probably not a 1201(a)-protected TPM. This and other related issues have been discussed extensively on this list; you might check the archives. In article , Tim Neu wrote: > > I know we've been over this a little bit - but I feel that we are missing > something here. > > I know in the trial transcript, Kaplan is treating the word > "Effective" almost as an intent. Thus, if the copyright owner > "intents" for CSS to be an access control mechanism, then it is one. > > By the same token, someone printing text on the screen "upside-down" > (intending for it to be a TPM) might be able to sue under 1201 (a) anyone > smart enough to turn the monitor right-side up! > > I realize this is an extreme example. I just wonder how that > interpretation could be used in such a way without making nearly > everything in our world "illegal" to distribute under the DMCA. There has > got to be a way to attack this! Surely Congress didn't intend siht ot eb > na ssecca lortnoc! > > There has to be some threshold of responsibility that Congress > expected the copyright owner to achieve before a TPM is given protection! > > The bottom line is that sending the keys with the lock in the same package > (the DVD), does not even meet a resonable threshold of responsibility! > > I think the key line of questioning we need here is: > > Is a lock secure if it is distributed with its keys? > > Is a safe an effective way to protect access to your property - if the > combination is engraved in the door? > > How could the MPAA expect the DVD player keys to remain a secret when they > sold a copy of the keys on each and every one of the 10 million DVDs in > circulation today? That's not "access control" at all! > > Each and every DVD is the content, the lock that protects the content, and > the key. > > > Maybe this rant doesn't make sense from a legal perspective - but it sure > is scary to think of the kinds of things copyright owners can do with > a legal interpretation of the DMCA like this... > > > =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- > ______ _ __ "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 > / <_/ / / < / (_ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:50:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02973 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:50:43 -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 TAA02970 for ; Thu, 20 Jul 2000 19:50:41 -0400 Message-ID: <20000720234922.28915.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Thu, 20 Jul 2000 16:49:22 PDT Date: Thu, 20 Jul 2000 16:49:22 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Jul 20 Wired article 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/culture/0,1284,37650,00.html __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:52:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03082 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:52:00 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA03079 for ; Thu, 20 Jul 2000 19:51:59 -0400 Received: by aero.org id <17101-4>; Thu, 20 Jul 2000 16:51:07 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCAAa22978; Thu Jul 20 16:50:57 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 16:50:40 -0700 Subject: Re: [dvd-discuss] Effective To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/20/2000 04:50:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Thu, 20 Jul 2000 16:51:05 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id TAA03080 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No. I don't think he want to show that they failed to mitigate damage. If he does that then he is admitting that his client has caused damage. Bryan Taylor @eon.law.harvard.edu on 07/20/2000 04:42:28 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Effective --- John Schulien wrote: > 2) No person shall circumvent a technological > measure, that DOES A GOOD JOB of > controlling access to a work protected > under this title. > > Garbus' line of questioning on day 3, and a lot > of the discussion here leads me to believe that > he is shooting for interpretation two I think what Garbus is really trying to show is that the MPAA knew they had a weak system and did nothing, thereby worsening the harms. In essence, the MPAA failed to mitigate the damage. Remember that all cryptology depends on knowing a secret, usually called the key. If the algorithm is strong and the key's secrecy is compromised, a good system will allow you to minimize the damage by simply generating a new key. However, because the algorithm is itself weak, and the MPAA did nothing, they must take their share of responsibility for the fact that CSS, even if all keys are changed, is useless. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail ? Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:55:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03156 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:55:13 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA03153 for ; Thu, 20 Jul 2000 19:55:12 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id TAA15843; Thu, 20 Jul 2000 19:55:17 -0400 Message-ID: <39779165.2EF7CE7A@mit.edu> Date: Thu, 20 Jul 2000 19:55:17 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 References: <39778B59.F72CD3F4@uic.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 John Schulien wrote: > > > [Kaplan] said, "... What I do might help prevent > > another horse from escaping but not DeCSS." > > ... which is completely wrong. Nothing he says or > does will prevent the next horse from escaping, > or aid its escape. He is, however, determining > whether escaped horses are outlaw horses, or > liberated horses. > > "Escaped horses" meaning "trade secrets > discovered through reverse engineering." > I think that the pre-1201 answer would be, > "liberated horses." > > I hope he doesn't think that his decision will > change the behavior of 16 year olds the > world over ... is he a parent? Kaplan's decision won't change the behavior of 16 year olds the world over, but it will change the behavior of the over-18-year-olds who, in the case of DeCSS, chose to mirror what the 16-year-old had done. And if not enough over-18s choose to mirror the next time around, the MPAA (or the RIAA or your other favorite pile of letters) will be able to keep utilities they don't like underground next time. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 19:57:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03287 for dvd-discuss-outgoing; Thu, 20 Jul 2000 19:57:23 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA03284 for ; Thu, 20 Jul 2000 19:57:22 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id QAA29053 for ; Thu, 20 Jul 2000 16:56:30 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id QAA20196; Thu, 20 Jul 2000 16:54:41 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Effective Date: 20 Jul 2000 16:54:31 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8l83fn$jn3$1@blowfish.isaac.cs.berkeley.edu> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > No. I don't think he want to show that they failed to mitigate damage. If > he does that then he is admitting that his client has caused damage. Which brings me back to my reading of the transcript. It sounded to me like he was possibly preparing to argue that his client has not caused any harm, and that the MPAA knows it. (Proof (possibly what Garbus has in mind): If there really _was_ any risk of harm, the MPAA could have done something to mitigate the harm. They did nothing. Therefore even they didn't truly believe there was ever any risk of harm. QED.) From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:08:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03364 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:08:20 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA03361 for ; Thu, 20 Jul 2000 20:08:18 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FQLc-0007dV-00; Thu, 20 Jul 2000 17:07:24 -0700 Date: Thu, 20 Jul 2000 17:07:24 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000720170724.E594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39778B59.F72CD3F4@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <39778B59.F72CD3F4@uic.edu>; from jms@uic.edu on Thu, Jul 20, 2000 at 06:29:29PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien writes: > > [Kaplan] said, "... What I do might help prevent > > another horse from escaping but not DeCSS." > > ... which is completely wrong. Nothing he says or > does will prevent the next horse from escaping, > or aid its escape. He is, however, determining > whether escaped horses are outlaw horses, or > liberated horses. > > "Escaped horses" meaning "trade secrets > discovered through reverse engineering." > I think that the pre-1201 answer would be, > "liberated horses." > > I hope he doesn't think that his decision will > change the behavior of 16 year olds the > world over ... is he a parent? It's about making the horses afraid to leave, more than about locking them up -- litigators, remember, rather than alligators. You can train animals to stay within certain boundaries by setting up an electric fence and letting them experiment with it for a while -- even if you later turn off the electricity, the fear effect will keep them from crossing the line in time to come. Kaplan's decision sets a precedent (of various strengths in various places). If there is a clear precedent that decryption software can be banned under the DMCA and people punished for publishing it, lots and lots of people -- obviously not _everybody_ -- will be afraid and their speech chilled. Precedential value, and making an example of someone (like Emmanuel), isn't ever all-or-nothing in its effect on third parties' future behavior. Instead, it's always statistical. Those statistics may be important enough for the MPAA to spend vast amounts of money on influencing them. I'd speculate that underground security research which affects copyright interests somehow has already been chilled quite a bit from the fear inspired by this lawsuit. It's really hard to measure that, though -- are we supposed to wander around at Defcon asking people "Did _Universal v. Reimerdes_ scare you out of starting some project which you might otherwise have been interested in?" or post surveys on BUGTRAQ and cypherpunks? There is just no way to know. But I go to Linux user group meeting and people say they're scared, and that crowd is hardly the 'leet underground or anything. Never mind the waves of fear, trembling, and anger that percolate through the mass of black-clad teenagers and computer security journalists at 2600 meetings. Fear and statistics, fear and statistics. Judge Kaplan can at most make a martyr out of Emmanuel (increasing the number of mirror sites worldwide), and maybe try to restrict "persons in active concert or participation with him" (which would raise exactly the same issue as the Mattel case James Tyre mentions). But the "real" effect would be to make the public more fearful of crossing copyright holders with the technical information they publish. "Oderint," I see Jack Valenti saying, "dum metuant." -- 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 Jul 20 20:10:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03539 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:10:07 -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 UAA03536 for ; Thu, 20 Jul 2000 20:10:06 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA27600; Thu, 20 Jul 2000 20:09:17 -0400 Date: Thu, 20 Jul 2000 20:09:17 -0400 From: Jim Bauer Message-Id: <200007210009.UAA27600@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Newsgroups: local.dvd-discuss In-Reply-To: <8l7rdq$jci$1@blowfish.isaac.cs.berkeley.edu> References: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu daw@cs.berkeley.edu (David A. Wagner) wrote: >Joshua Stratton wrote: >> Well, perhaps this is also a misconception, but I had been under the >> impression that any particular classically encrypted message could be >> broken sooner or later, although you may run into values of 'later' that >> exceed the projected lifetime of the universe or something. > >Nope. Still wrong. There exists provably unbreakable encryption >schemes (the one-time pad); it's just that they happen not to be very >useful in practice. > >Anyway, forgetting all those theoretical nitpicks, I'll certainly admit >that your statement is much closer to the truth, but phrasing it the way >you did contributes to the misconception. > >People later repeat this, without the caveat about "values of 'later'", >and you end up with stuff like: > Every encrypted message can be broken sooner or later. >Uninformed people then hear this and think "sooner = 1 day; later = 1 year", >and assume it's impossible to build secure encryption, so why bother? > >Or: Who cares if CSS is insecure, everything gets broken sooner or later, >so who cares if the studios did a shamefully shoddy job in the design of CSS? > >Note that, if I remember the statements at trial correctly, it _was_ >indeed stated as "can be broken sooner or later" without warning that >later might exceed the life of the universe. This gives a very wrong >impression, > >It's this misinformed attitude which is very damaging, and it can lead >you to some very wrong conclusions. I sincerely that this does not happen >in this court case. > Any encryption system can be rendered moot by poor/sloppy key management. If you gives the keys to everyone, you really don't have encryption. I think that describes DVD Videos. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:11:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03593 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:11:17 -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 UAA03590 for ; Thu, 20 Jul 2000 20:11:16 -0400 Message-ID: <20000721000957.12125.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Thu, 20 Jul 2000 17:09:57 PDT Date: Thu, 20 Jul 2000 17:09:57 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 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 --- John Young wrote: > Bryan, > > I appreciate that you want more legal meat, but I'm > not that an apt reporter as you've seen. Better to read the > transcript than any summary. Eddan at EFF will have today's > up in a few hours. Hey, don't sell yourself short. Gut reaction is actually very interesting, but forgive me for feeling news-starved. > BTW, Kaplan asked in court what the status was of 2600's > appeal of his denial of the recusal motion. Garbus > answered: the appeal had been denied. I hope we can read it. At present, I guess antitrust hasn't been presented forcefully as an issue *in the trial*, so Kaplan's position is defendable. I would assume that if/when it does become an issue, then Garbus will refile a motion to recuse. > That's why Jon's testimony was compelling: he seemed > to be totally the master of reverse engineering, with nothing > else to clutter his mind, you know, the FUD choking anybody > between 17 and 65. If he did well, this could go a long way to carrying the case on the RE point. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:13:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03643 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:13:16 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA03640 for ; Thu, 20 Jul 2000 20:13:16 -0400 Received: from mediaone.net (eldred.ne.mediaone.net [24.128.241.25]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA03495 for ; Thu, 20 Jul 2000 20:12:26 -0400 (EDT) Message-ID: <39779DB2.3CF3807A@mediaone.net> Date: Thu, 20 Jul 2000 20:47:46 -0400 From: Eric Eldred Organization: Eldritch Press X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.5-15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 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 >Now if they lose.....the mighty MPAA has been defeated by a 17yr old from >Norway and a magazine editor... The transcript Monday actually had Kaplan refer to Jon as "the King of Norway." I know Jon is getting famous for a 17-year-old, but I didn't realize he had become royal. (Maybe more countries should enjoy such royal personages.) Then I figured maybe he said instead, "residing in Norway." From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:23:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03895 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:23:27 -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 UAA03892 for ; Thu, 20 Jul 2000 20:23:26 -0400 Message-ID: <20000721002205.10035.qmail@web514.mail.yahoo.com> Received: from [64.81.25.36] by web514.mail.yahoo.com; Thu, 20 Jul 2000 17:22:05 PDT Date: Thu, 20 Jul 2000 17:22:05 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Effective 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 --- Michael.A.Rolenz@aero.org wrote: > > No. I don't think he want to show that they failed to mitigate > damage. If he does that then he is admitting that his client has > caused damage. I should say "impact to their business objectives" instead of "damage". I'm not speaking of legal damage. I'm also not saying that the MPAA's business objectives are the right ones, since they don't necessarily align with maximizing DVD sales. I happen to think that un-copyprotected products actually sell better. This got me thinking. A big difference between movies and Napster is that for music, radio stations exist and regularly take requests, which are broadcast for free. Thus most stuff is broadcast for free anyway, and peoples expectations about their ability to make free use are different. I don't think anybody would argue that a DivX file trader isn't commiting simple copyright infringement -- which is (still) a crime. If anybody tries to say this is OK by Betamax, I'm gonna hurl. Thus the Plaintiffs fears that they are going to be Napsterized misjudge the tolerance of the public and law for true movie piracy. They are still protected against this legally, even with DeCSS out there. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:30:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04538 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:30:48 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04535 for ; Thu, 20 Jul 2000 20:30:46 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id RAA16870 for ; Thu, 20 Jul 2000 17:29:38 -0700 Date: Thu, 20 Jul 2000 17:29:38 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective In-Reply-To: <20000721002205.10035.qmail@web514.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000, Bryan Taylor wrote: > This got me thinking. A big difference between movies and Napster is > that for music, radio stations exist and regularly take requests, which > are broadcast for free. Thus most stuff is broadcast for free anyway, > and peoples expectations about their ability to make free use are > different. I don't think so. The record companies pay and are using the music commercially. But I kind of see your point about the ubiquity of music... I still don't think there's a difference. > I don't think anybody would argue that a DivX file trader isn't > commiting simple copyright infringement -- which is (still) a crime. If > anybody tries to say this is OK by Betamax, I'm gonna hurl. I would argue. I believe firmly that non-commercial use of copyrighted material is protected and non-infringing. > Thus the Plaintiffs fears that they are going to be Napsterized > misjudge the tolerance of the public and law for true movie piracy. > They are still protected against this legally, even with DeCSS out there. True movie piracy is the printing facility in Hong Kong we saw a few weeks back. True movie piracy is what Miramax does to independent films. True movie piracy is what the folks who made Road Trip did to Overnight Delivery. Ok, nuff of that. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:33:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04589 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:33:01 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04586 for ; Thu, 20 Jul 2000 20:33:00 -0400 Received: from mediaone.net (eldred.ne.mediaone.net [24.128.241.25]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id UAA14421 for ; Thu, 20 Jul 2000 20:32:11 -0400 (EDT) Message-ID: <3977A253.BEAC2D21@mediaone.net> Date: Thu, 20 Jul 2000 21:07:31 -0400 From: Eric Eldred Organization: Eldritch Press X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.5-15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] King: Authority to decode CSS does not come from Warner! 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 From: John Schulien >Mr. Garbus questioning Ms. King on page 454: > >> 12 Q. Can Warner decide on its own to allow a company to play >> 13 its DVDs without that company having a license from the >> 14 DVD-CCA? >> 15 A. No, not if we have encrypted the movie. >> 16 Q. If you encrypted the movie and I created a player that >> 17 could deencrypt that movie, could Warner sell that DVD to me? >> 18 A. I think that would violate the license with DVD-CCA. >Didn't she just say in essence that Warner, the copyright >owner, does not have the authority to authorize the >decryption of CSS; That only the DVD-CCA has? >In that case, the permission to decrypt CSS comes not >from the copyright owner, but from the DVD-CCA. Given >that 1201 (a)(3)(B) seems to say that 1201 only protects >technological measures whose authority stems from the >copyright owner, shouldn't the fact that Warner has >apparently either abdicated such authority, or more >importantly never had such authority in the first place >make CSS a non-1201 technological measure? Where did Shamos get the authority to decrypt "Sleepless in Seattle"? Who gave it to him and under what authority? Did the copyright holder do so, the MPAA (which doesn't own the copyright), the CSS owners, or who? If he didn't need, or couldn't get, this authority, then why is linking to DeCSS illegal? Was he authorized as some sort of police by a court? If he was in violation of the law in doing this decryption, should he be responsible for his actions using CMU property and staff? Maybe he should be brought back to testify on this point. The question of authority here does seem very important. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:46:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04872 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:46:34 -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 UAA04869 for ; Thu, 20 Jul 2000 20:46:33 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id TAA19603 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 19:45:43 -0500 Date: Thu, 20 Jul 2000 19:45:43 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000720194543.A19507@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <39779DB2.3CF3807A@mediaone.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <39779DB2.3CF3807A@mediaone.net>; from eldred@mediaone.net on Thu, Jul 20, 2000 at 08:47:46PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 20, 2000 at 08:47:46PM -0400, Eric Eldred wrote: > > >Now if they lose.....the mighty MPAA has been defeated by a 17yr old from > >Norway and a magazine editor... > > The transcript Monday actually had Kaplan refer to Jon > as "the King of Norway." I know Jon is getting famous > for a 17-year-old, but I didn't realize he had become > royal. (Maybe more countries should enjoy such royal > personages.) > > Then I figured maybe he said instead, "residing in > Norway." The transcript actually was referring to Frank Stevenson, and the transcript says "president of Norway", which, though funny, is an obvious typo away from "resident of Norway". From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 20:51:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA04982 for dvd-discuss-outgoing; Thu, 20 Jul 2000 20:51:46 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA04979 for ; Thu, 20 Jul 2000 20:51:45 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id UAA16124; Thu, 20 Jul 2000 20:51:50 -0400 Message-ID: <39779EA6.8285E629@mit.edu> Date: Thu, 20 Jul 2000 20:51:50 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not comefrom Warner! References: <3977A253.BEAC2D21@mediaone.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 Eldred wrote: > > Where did Shamos get the authority to decrypt "Sleepless > in Seattle"? Who gave it to him and under what authority? > Did the copyright holder do so, the MPAA (which doesn't > own the copyright), the CSS owners, or who? If he didn't > need, or couldn't get, this authority, then why is linking > to DeCSS illegal? Was he authorized as some sort of police > by a court? > > If he was in violation of the law in doing this decryption, > should he be responsible for his actions using CMU property > and staff? > > Maybe he should be brought back to testify on this point. > The question of authority here does seem very important. I don't think its that worthwhile. I'm sure the plaintiffs have (or can create) documents from the DVD CCA, MPAA, Time Warner or anyone else in their trust that would be necessary to give Shamos the authority to decrypt. And whatever they come up with will be consistent with the authority model they have asserted so far (DeCSS is unauthorized because we [for various definitions of we] say it is. Shamos was authorized because we said he was). - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 21:15:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05496 for dvd-discuss-outgoing; Thu, 20 Jul 2000 21:15:16 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05493 for ; Thu, 20 Jul 2000 21:15:15 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FROL-0007o9-00; Thu, 20 Jul 2000 18:14:17 -0700 Date: Thu, 20 Jul 2000 18:14:17 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective Message-ID: <20000720181417.F594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000721002205.10035.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <20000721002205.10035.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Jul 20, 2000 at 05:22:05PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > I don't think anybody would argue that a DivX file trader isn't > commiting simple copyright infringement -- which is (still) a crime. OK, so, once noncommercial copyright infringement wasn't a crime. Then the LaMacchia case and some copyright fans feeling foolish for noncommercial copyright infringement not being a crime. ("Oh, we forgot the public was going to get printing presses and Xerox machines sometime.") Then legislation so that it was a crime. Now Napster's attorney says it's not a crime again, at least for home users trading copyrighted music. Why? AHRA? -- 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 Jul 20 21:25:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05633 for dvd-discuss-outgoing; Thu, 20 Jul 2000 21:25:26 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05600 for ; Thu, 20 Jul 2000 21:25:22 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id RAA01515 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 17:36:50 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 Date: Thu, 20 Jul 2000 17:22:43 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <200007202249.SAA11516@maynard.mail.mindspring.net> In-Reply-To: <200007202249.SAA11516@maynard.mail.mindspring.net> MIME-Version: 1.0 Message-Id: <0007201736480C.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Like some of the others here, my ears are starting to pop up. The tone of Kaplan's inquiries seems to be changing ever so subtly. He seems to be starting to wonder exactly what the MPAA/studios are attempting to accomplish. The studios have already stipulated that they are willing to concede that they do not have a shred of evidence of actual harm. Kaplan then asks them if they are trying to get DeCSS declared illegal, then asks them why they have not gone after all of the other purveyors of DeCSS. They say simply that they "have to start somewhere". Which sounds to my unlawyer-like ears to be an awful lame answer. That does not explain why they are ignoring all of the other instances of DeCSS they have turned up upon searching the web. And then he asks "how would it help to promote anti-piracy if they were to win the case". This seems to be a real loaded question on all sorts of levels. He seems to be asking "We know that DeCSS is not going to go away, you've already stipulated that you can't show any harm directly from DeCSS, there may be other issues that we haven't even begun to address yet. What could you *possibly* accomplish by winning this trial?" And if Kaplan begins to put two and two together about the answer of that question: Whether DeCSS aids piracy or doesn't is immaterial to them, it's their straw man. They care that DeCSS allows machines other than their licensed players to be used to view CSS encoded DVDs. Someone figured out how their baby worked, and posted the results, and now they are throwing a temper tantrum and "telling mama". And in order for them to keep control of the player markets, they are hiding behind all sorts of arguments based on a bad law. If Kaplan even begins to realise even a little bit of what is really motivating them, I have a feeling we could stand half a chance. He seems to. If we can successfully press the antitrust and/or copyright misuse argument, that would be wonderful. If Kaplan starts to realize himself that's what's happening, that would be beyond our wildest dreams. I don't think it's impossible. If there's one thing I noticed about Kaplan, he does NOT like to be played for a fool. And he seems to be beginning to realize that the "piracy" stuff that MPAA/the studios are barraging him with is just the facade. --Jim (Russell) On Thu, 20 Jul 2000, you wrote: > Jon Johansen was a superb witness. Clear minded, > articulate, informed, direct, no hesitations, about as > good as it gets. He's now heading for Norway. > > Second highlight was when Kaplan asked MPAA's > anti-piracy head what did she think could be done > to help her job if he found in the plaintiffs' favor that > was not already available for use under DMCA. He > read the criminal penalities provided under DMCA, > and asked the question again: how would it help > anti-piracy to win the case, to get a permanent injunction > against DeCSS. He said no injunction is going to make > worldwide copies of DeCSS disappear. > > He said, "look, we all know the horse is out of the barn, > DeCSS is all over the world, and nothing I can do can > change that. Sure, the barn can be locked now but the > DeCSS horse is gone. What I do might help prevent > another horse from escaping but not DeCSS." > > Third highlight was during Ed Felton's testimony > when Judge Kaplan said he wanted to tell Ed his > view of the difference between source code and > object code and get Ed's opinion about its accuracy. > He then did a pretty darn good description, and Ed said > that is correct, and paused professorly. Kaplan leaned > back satisfied. Then Ed went back to describing code > the way a genuine expert does -- with shading, > nuances, ambiguities, variations, doubts, confusions, > arguments, disagreements, competition, errors, > experiments, evolutions, reversals, all the stuff > learned researchers know and remain unsettled > about. Then said that is why we need maximum > freedom to reverse engineer, hack, crack, violate > and recreate products hiding as intellectual properties. > > Fourth highlight was seeing a lot of people meet > Shawn Reimerdes, then repeat his infamous > phrase. > > Fifth highlight was Emmanuel reading sample stories > from 2600 -- the headlines promised violations > to law and order, yet he said this, too, is information, > for the public has a right to have it for their own privacy > protection against "evil corporations." > > Kaplan said a live feed of the proceedings is still > being looked into. A court official said that the > Chief Administrative Judge will have to make the > call. -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 21:28:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05828 for dvd-discuss-outgoing; Thu, 20 Jul 2000 21:28:25 -0400 Received: from mailhub.dfrc.nasa.gov (mailhub.dfrc.nasa.gov [130.134.81.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05825 for ; Thu, 20 Jul 2000 21:28:24 -0400 Received: from mail.dfrc.nasa.gov by mailhub.dfrc.nasa.gov with ESMTP; Thu, 20 Jul 2000 18:27:05 -0700 Received: from pchecker (pchecker.dfrc.nasa.gov [130.134.254.128]) by mail.dfrc.nasa.gov (Post.Office MTA v3.5.3 release 223 ID# 35-62055U1500L100S0V35) with SMTP id gov for ; Thu, 20 Jul 2000 18:27:04 -0700 Message-Id: <4.1.20000720182042.00a28790@mail.dfrc.nasa.gov> X-Sender: richard_hecker@mail.dfrc.nasa.gov X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Thu, 20 Jul 2000 18:32:52 -0700 To: dvd-discuss@eon.law.harvard.edu From: "Richard A. Hecker" Subject: Re: [dvd-discuss] Kaplan considers declatory judgment Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Or we kill it in appeals. He's completely writing the case record himself by doing this. With this in mind, how does the statement on page 468 relate? 22 THE COURT: We will talk about it later. Mr. Gold, remind me, is there a claim for declaratory 23 relief in this case? Do you want to go back and check? All right. I have no idea what a "declatory judgment" involves, but it sounds like this judge wants to offer one. Richard Richard A. Hecker Sr. Engineer, Woodside Summit Group Inc. NASA Dryden Flight Research Center Edwards Air Force Base, Edwards CA richard.hecker@dfrc.nasa.gov 661.276.2272 800.521.3416 x2272 DISCLAIMER - My employer and NASA do not censor the content of my email messages. Anyone reading this message should therefore conclude that it only represents my personal viewpoint. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 21:30:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05997 for dvd-discuss-outgoing; Thu, 20 Jul 2000 21:30:16 -0400 Received: from chmls06.mediaone.net (chmls06.mediaone.net [24.147.1.144]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05994 for ; Thu, 20 Jul 2000 21:30:15 -0400 Received: from mediaone.net (eldred.ne.mediaone.net [24.128.241.25]) by chmls06.mediaone.net (8.8.7/8.8.7) with ESMTP id VAA14341 for ; Thu, 20 Jul 2000 21:29:23 -0400 (EDT) Message-ID: <3977AFB9.319FBFA8@mediaone.net> Date: Thu, 20 Jul 2000 22:04:41 -0400 From: Eric Eldred Organization: Eldritch Press X-Mailer: Mozilla 4.7 [en] (X11; U; Linux 2.2.5-15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seth David Schoen : >Bryan Taylor writes: >> I don't think anybody would argue that a DivX file trader isn't > commiting simple copyright infringement -- which is (still) a crime. >OK, so, once noncommercial copyright infringement wasn't a crime. There is also the issue of entrapment. The offer of exchange came from the plaintiff's end: Eric Burns was on iRC a long time making offers, and we didn't see what he proposed there, since the transcript was edited before it became evidence. (Shamos testified he typed in one sentence to clarify it.) Second point is that the amount of damages in this particular exchange would not be enough to invoke the No Electronic Theft Act, the act set up to reverse the LaMacchia case. If it was copyright infringement, then the plaintiffs would have to go to court and submit evidence before a judge, not just call down the police and take away the Internet connection of the offender. So if the behavior in question is now decided to be one that is regulated by the DMCA (because of the DeCSS connection--which is completely unknown here--and in fact the plaintiffs have stipulated they have no evidence whatsoever for that) then criminalizing the trade would be in violation of users' fair use rights, rights to a trial, First Amendment rights, and so on, all of which are specifically protected by the DMCA 1201(c)(1). If not, then DMCA is in conflict with copyright law, and must be struck down. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 21:56:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07158 for dvd-discuss-outgoing; Thu, 20 Jul 2000 21:56:23 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA07155 for ; Thu, 20 Jul 2000 21:56:21 -0400 Received: from ppp.anonymizer.com (c03-116.015.popsite.net [64.24.74.116]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA00893 for ; Thu, 20 Jul 2000 18:57:45 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720185348.00abe920@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 18:56:44 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Kaplan considers declatory judgment In-Reply-To: <4.1.20000720182042.00a28790@mail.dfrc.nasa.gov> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 06:32 PM 7/20/2000 -0700, Richard A. Hecker wrote: > >Or we kill it in appeals. He's completely writing the case record himself >by doing this. > >With this in mind, how does the statement on page 468 relate? > > 22 THE COURT: We will talk about it later. > Mr. Gold, remind me, is there a claim for declaratory > 23 relief in this case? Do you want to go back and check? All > right. > >I have no idea what a "declatory judgment" involves, but it sounds like >this judge wants >to offer one. 28 U.S.C. Section 2201: (a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue Code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of merchandise of a free trade area country (as defined in section 516A(f)(10) of the Tariff Act of 1930), as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:06:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA07421 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:06:57 -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 WAA07418 for ; Thu, 20 Jul 2000 22:06:56 -0400 Received: from baron (max01-46.suba.com [206.69.121.238]) by suba01.suba.com (8.9.1a/8.9.1) with ESMTP id VAA03870 for ; Thu, 20 Jul 2000 21:06:05 -0500 (CDT) From: "sparky" To: dvd-discuss@eon.law.harvard.edu Date: Thu, 20 Jul 2000 21:05:49 -0500 MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: [dvd-discuss] Effective... Message-ID: <397769AD.17861.17B80D@localhost> In-reply-to: X-mailer: Pegasus Mail for Win32 (v3.12c) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Tim Neu @eon.law.harvard.edu on 07/20/2000 03:21:35 > PM >Surely Congress didn't intend > siht ot eb na ssecca lortnoc! Maybe not, but siht si na ssecca lortnoc if it requires you to put the text into a special "player" in order to read it (a la licensed DVD player), >according to the MPAA< and maybe others (that is/may be, govt authority) as well. I don't think your observation is really all *that* extreme.. "access control" for digital content only counts or exists to the extent that you can control the reading/access environment, that is related tech. If I put a watermark on my mp3s and that mark interferes with all mp3 players' playing *except* for the one that I call "licensed", have I created a punishable by 1201 TPM? If I have, then when someone REs my file format so that Sonique can play my weird mp3s, they've broken the law by the logic of the MPAA. This is an approach I'd really like to see pulled out in court, but it's more of an attack on the law itself, and maybe not the appropriate strategy at this moment. In fact, the only difference I think really exists between encrypted DVDs and the backwards text above is the fact that the "process" applied to decrypt a DVD for viewing is technological. Do I not apply a process or information in order to decode the backwards text, namely my knowledge of spelling? It's entirely possible for a person to be unable to apply that knowledge and decode the backwards text, it's just so easy that we would call that person stupid. sparky From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:13:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA07921 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:13:28 -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 WAA07918 for ; Thu, 20 Jul 2000 22:13:27 -0400 Received: from ip40.bedford.ma.pub-ip.psi.net ([38.32.9.40]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13FSIo-0001Bv-00 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 22:12:38 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective Date: Thu, 20 Jul 2000 22:06:30 -0400 Message-ID: References: <3977AFB9.319FBFA8@mediaone.net> In-Reply-To: <3977AFB9.319FBFA8@mediaone.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 WAA07919 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000 22:04:41 -0400, Eric Eldred wrote: >There is also the issue of entrapment. The offer of exchange >came from the plaintiff's end: Eric Burns was on iRC a long >time making offers, and we didn't see what he proposed there, >since the transcript was edited before it became evidence. >(Shamos testified he typed in one sentence to clarify it.) I'd also note that they had the option to use two assistants in the viability demo instead enticing eaRoSoL to actually commit a crime (using CMU resources.) __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:24:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08310 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:24:36 -0400 Received: from ts0210.bates.edu (root@ts0205.bates.edu [134.181.72.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08307 for ; Thu, 20 Jul 2000 22:24:33 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id WAA00980 for ; Thu, 20 Jul 2000 22:29:28 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Thu, 20 Jul 2000 22:29:27 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <39779165.2EF7CE7A@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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Thu, 20 Jul 2000, Ravi Nanavati wrote: > Kaplan's decision won't change the behavior of > 16 year olds the world over, but it will change > the behavior of the over-18-year-olds who, in > the case of DeCSS, chose to mirror what the > 16-year-old had done. And if not enough over-18s > choose to mirror the next time around, the > MPAA (or the RIAA or your other favorite pile > of letters) will be able to keep utilities they > don't like underground next time. I think you underestimate the ability of the internet community to resist censorship. In order to be *permanently* out there on the internet, a piece of information currently requires three characteristcs: 1) It must be seen as pro-free-speech. 2) Someone must try to censor it. 3) News of 2 must be posted on Slashdot. I'm not kidding here, folks. Aside from my (and I hope others) willingness to go to jail for this sort of thing, if those three things happen, the software is *never* *going* *away*. It's just not possible. It's these facts that keep my spirits up, even when the trial is going badly (not that it is). sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5d8OYt+kM0Mq9M/wRAgDLAKCiflPzIFHWwdGyIdABSpyo649YMwCeO8vt e4ps6In7HCA1mdeAahKC8as= =immh -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:44:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08661 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:44:34 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08658 for ; Thu, 20 Jul 2000 22:44:28 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id WAA16350; Thu, 20 Jul 2000 22:44:25 -0400 Message-ID: <3977B909.34454026@mit.edu> Date: Thu, 20 Jul 2000 22:44:25 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 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 sam th wrote: > I think you underestimate the ability of the internet community to resist > censorship. In order to be *permanently* out there on the internet, a > piece of information currently requires three characteristcs: > > 1) It must be seen as pro-free-speech. > 2) Someone must try to censor it. > 3) News of 2 must be posted on Slashdot. > > I'm not kidding here, folks. Aside from my (and I hope > others) willingness to go to jail for this sort of thing, if those three > things happen, the software is *never* *going* *away*. It's just not > possible. > > It's these facts that keep my spirits up, even when the trial is going > badly (not that it is). > > sam th > sam@uchicago.edu > http://www.abisource.com/~sam/ I am not as sure as you are. Once a judgement has been entered, there is no place for people and their ISPs to hide. I am sure there are people willing to go to jail, but I don't think they are enough of them and actually going to jail is self-defeating (if you're in jail you can't keep the software up and at least some of the protesters will be deterred). To some extent, banned software will survive outside of the US, but the US government is slowly figuring out the power of the network effects on their side. They are slowly starting to threaten countries have internet services they don't like (I'm thinking of internet gambling and anonymous cash in particular) with disconnection from ths US part of the Internet, and leaning on allies to do the same. I don't know if this tactic will work over the long term, but I think it has a good chance, and that scares me. I suppose this is why my spirits go down when the trial isn't going well. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:47:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08793 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:47:17 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08789 for ; Thu, 20 Jul 2000 22:47:16 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id VAA07196 for ; Thu, 20 Jul 2000 21:45:49 -0500 Message-ID: <3977B868.B4641129@mninter.net> Date: Thu, 20 Jul 2000 21:41:44 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Day four transcript Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu As if you don't know where to get it. I apologize for the wordwrap. It's a long line! http://www.eff.org/IP/Video/MPAA_DVD_cases/20000720_ny_trial_transcript.html -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:47:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08899 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:47:52 -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 WAA08896 for ; Thu, 20 Jul 2000 22:47:51 -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:2.21) with ESMTP id WAA02467 for ; Thu, 20 Jul 2000 22:46:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA22687; Thu, 20 Jul 2000 22:46:49 -0400 (EDT) Date: Thu, 20 Jul 2000 22:46:49 -0400 (EDT) Message-Id: <200007210246.WAA22687@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective... In-Reply-To: <397769AD.17861.17B80D@localhost> References: <397769AD.17861.17B80D@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sparky@suba.com writes: > > > > Tim Neu @eon.law.harvard.edu on 07/20/2000 03:21:35 > > PM > >Surely Congress didn't intend > > siht ot eb na ssecca lortnoc! > > Maybe not, but siht si na ssecca lortnoc if it requires you to put the > text into a special "player" in order to read it (a la licensed DVD > player), >according to the MPAA< and maybe others (that is/may > be, govt authority) as well. And there are several other technological processes --- MPEG decompression, A-to-D conversion, perhaps some internal digital format conversions --- all of which are as necessary as CSS "decryption" to accessing the video on a DVD, and at least one of which (MPEG decompression) is much more computationally involved than CSS. Certainly more so than gnihtyna ekil siht. MPEG decompression can't be plausibly described as access control because the method is public knowledge. But if it weren't? By this standard, the only way to judge whether something is an access control process is the intent of the copyright holders, and the only way to judge that is the copyright owners' declarations. In other words, it's access control if they say it is. And by saying so, they gain a permanent patent-like monopoly on the process. Good deal. (Of course, if you interpret the "effective access control" definition to mean that the technological measure must *test* whether the viewer has the copyright holder's authority --- meaning that there are cases where it will *deny* access "in the ordinary course of its operation", then this problem at least goes away...). rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:51:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09073 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:51:27 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09070 for ; Thu, 20 Jul 2000 22:51:26 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id WAA16383; Thu, 20 Jul 2000 22:51:31 -0400 Message-ID: <3977BAB3.4FE58F6E@mit.edu> Date: Thu, 20 Jul 2000 22:51:31 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] 7/20 Transcript is up Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu For those of us (like me) who have been waiting for their transcript fix: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000720_ny_trial_transcript.html Thanks again to Eddan Katz. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:53:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09358 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:53:44 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09355 for ; Thu, 20 Jul 2000 22:53:43 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P7MC>; Thu, 20 Jul 2000 22:57:26 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E72@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] rebuttal point Date: Thu, 20 Jul 2000 22:57:25 -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 One of the most concrete points raised by defense witnesses is that Windows is a valid test platform because the udf filesystem was not yet available on Linux systems. Plaintiffs have tried to counter this saying that udf existed. One witness (I'd quote in the transcript if I could find it), said that only a small amount of udf needs to be implemented to play DVDs. There are factual problems with the plaintiffs expert. First of all, it should be mentioned that changing your kernel is something that you might or might not have the liberty to do at any time. Second, the contention that you only have to implement a little bit of a filesystem to read DVDs is really oversimplification. Filesystem drivers are a specialized art in themselves, and there are a bunch of requirements you have to satisfy just to get it to begin to work. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 22:55:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09521 for dvd-discuss-outgoing; Thu, 20 Jul 2000 22:55:28 -0400 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09499 for ; Thu, 20 Jul 2000 22:55:20 -0400 Received: from [12.88.193.46] by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000721025401.MPZH6710.mtiwmhc22.worldnet.att.net@[12.88.193.46]> for ; Fri, 21 Jul 2000 02:54:01 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Thu, 20 Jul 2000 22:53:26 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Day 4 Trial Transcript Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The transcript of court proceedings from day 4 is available at: http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000720_ny_tr ial_transcript.html This one's definitely worth reading. -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:02:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA09929 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:02:48 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA09926 for ; Thu, 20 Jul 2000 23:02:36 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA07810 for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 23:04:17 -0400 Date: Thu, 20 Jul 2000 23:04:12 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] file size? Message-ID: <20000720230412.B7754@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I confess I've never used DeCSS nor css-auth nor ripped a DVD or DiVX, but I have a question about the testimony of Shamos and Schumann. Both claimed to have decrypted and essentially "copied" a DVD, and then according to plaintiff's lawyers one traded this copy over the Internet, and the other did testify that such trading was assumed to take place (and the judge seemed to confirm that as being unnecessary even to answer). Is there a limit to Windows file size? Shamos [see below] testified that he was unable to make a full copy of "Sleepless in Seattle" because Eric Burns could not save a file larger than 4GB on the Windows (98?/2000?) system on the Sony laptop. Both testified that DVDs generally are around 4.6 or 4.7GB in size. Therefore Shamos and Burns performed some unspecified actions to truncate or compress the file, and eventually put it into MP4 format. This format uses lossy compression and is not the same as doing a bit-for-bit copy of the DVD. Garbus has pointed out that making an analog video of the DVD would be simpler, faster, and result in pretty much the same infringement, without implying DeCSS at all. My question is this chain of events the plaintiffs are trying to prove, that DeCSS allows anyone to make a copy of a DVD. Is there a limit in Microsoft Windows to the size of a binary file, or in the disk controller, or what was Shamos talking about? Schumann was not asked to give an answer to that question. Why didn't he encounter the same limit if Shamos did? (Note that we assume the free continuous disk space is larger than needed to store the video and audio files.) If DVDs cannot be bit-for-bit copied and traded, but have to be put into MP4 or some other form with lossy compression, what does that do to MPAA's claim to the contrary? It's certainly true that it still might be copyright infringement, but it's not quite the strong threat that MPAA has been claiming all along, and therefore might not require an injunction. Here is what Shamos said: 42 ... 9 Q. And what was the result that you obtained from applying 10 DeCSS to a store-bought copy of Sleepless in Seattle? 11 A. Yes, I think we have -- I guess we don't have exhibits 12 here. Well, the result of DeCSS'ing is what are called VOB 13 files, video object files, that are playable through the 14 laptop. And so, we obtained a file of Sleepless in Seattle. 15 The first time we did it, it wasn't complete because 16 the complete VOB file, I believe, is 4.3 gigabytes and we 17 couldn't get the system to create a file larger than four 18 gigabits. But we had a perfectly playable file and we played 19 it and it was the equivalent to the DVD of the movie Sleepless 20 in Seattle. Here is what Schumann testified: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000718_ny_trial_transcript.html 247 ... 8 So, that's the unlocking step. So, when DeCSS is 9 first brought up, it unlocks the DVD drive, so it can get 10 access to the content. It then provides a screen to the user 11 which looks just like any other Windows screen where the user 12 is able to select the files off of the DVD disk that they 13 would like to extract and copy. That's step 2. 14 Step 3, the user then selects the target directory 15 into which they would like to write the plain text or 16 decrypted files. That directory can be any directory on their 17 Windows machine. So, that could be the hard drive, could be a 18 directory on the hard drive, it could be a directory on 19 connected network machines. It could be a directory on an 20 attached tape drive or any -- essentially anywhere in the 21 Windows someone sees as a directory. 22 So, they select the files they want to copy, then 23 they select where they want the output written to, and then 24 finally they click the button that tells the program to start 25 and then the program goes to the process of running the CSS 248 1 decryption algorithms against that content and writes the 2 resultant plain text to the output files. 3 Q. So, at the end of this process, is it true that you have 4 descrambled the previously-scrambled DVD? 5 A. Absolutely. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:06:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10083 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:06:02 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10080 for ; Thu, 20 Jul 2000 23:06:01 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id XAA16436; Thu, 20 Jul 2000 23:06:06 -0400 Message-ID: <3977BE1E.3C461887@mit.edu> Date: Thu, 20 Jul 2000 23:06:06 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] rebuttal point References: <611C0CE12596D311B466009027D5E7591E4E72@c100.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 Leland Ray wrote: > > One of the most concrete points raised by defense > witnesses is that Windows is a valid test platform > because the udf filesystem was not yet available > on Linux systems. > > Plaintiffs have tried to counter this saying that > udf existed. One witness (I'd quote in the transcript > if I could find it), said that only a small > amount of udf needs to be implemented to play DVDs. > > There are factual problems with the plaintiffs expert. > > First of all, it should be mentioned that changing > your kernel is something that you might or might not have > the liberty to do at any time. Second, the contention > that you only have to implement a little bit of a filesystem > to read DVDs is really oversimplification. Filesystem > drivers are a specialized art in themselves, and there > are a bunch of requirements you have to satisfy just > to get it to begin to work. Third, what person in their right mind would test a decryption utility with an experimental filesystem? If you have a problem, is it the decrypter or the filesystem? Or, since as far as I know, the fs wasn't distributed with mainline kernels at that time is it your patching of the kernel? Debugging is hard enough without throwing up extra hurdles. This is just plaintiffs trying to make reverse engineering more difficult because they don't like it. We need to call them on this. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:14:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10568 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:14:06 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10565 for ; Thu, 20 Jul 2000 23:14:04 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id WAA10185 for ; Thu, 20 Jul 2000 22:12:44 -0500 Message-ID: <3977BEA1.5EFF9DEA@mninter.net> Date: Thu, 20 Jul 2000 22:08:17 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Choice Day 4 Trial quote 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 Pages 670-1 17 Now, it seems to me also that what the MPAA wants is 18 a legal determination that unlocking this barn was illegal, 19 and so the next guy who considers unlocking another barn is 20 going to have something serious to think about. I suspect you 21 are also asking me to issue an injunction against the guy who 22 unlocked this barn not to unlock it again even though there is 23 no horse in it. So, you know, I don't know that this witness 24 has any light to shed on that subject. 25 MR. GARBUS: I must say I'm now finding your 1 analogies much more to my liking. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:22:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11261 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:22:20 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11258 for ; Thu, 20 Jul 2000 23:22:19 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id UAA29615 for ; Thu, 20 Jul 2000 20:21:27 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id UAA20360; Thu, 20 Jul 2000 20:19:38 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 20 Jul 2000 20:19:28 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8l8fg0$js7$1@blowfish.isaac.cs.berkeley.edu> References: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> <200007210009.UAA27600@emperor.hwrd1.md.home.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Bauer wrote: > Any encryption system can be rendered moot by poor/sloppy key management. > If you gives the keys to everyone, you really don't have encryption. > I think that describes DVD Videos. Yes, that's right. My high-level point is that they _could_ have gotten all this right, but they didn't. They could have gotten the key management right. They could have not made software players available. They could have used a secure encryption algorithm. They did not do any of these things. Now, some people might object, saying "all encryption will be broken sooner or later, so why bother?". Such an objection would be incorrect and misleading. It is this bogus objection that I am trying to refute. Is this legally relevant to the court? Maybe not. Is it relevant to understanding the whole situation? I think so. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:32:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA11979 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:32:05 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA11976 for ; Thu, 20 Jul 2000 23:32:05 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id XAA16494; Thu, 20 Jul 2000 23:32:06 -0400 Message-ID: <3977C436.CE4A85A6@mit.edu> Date: Thu, 20 Jul 2000 23:32:06 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Ms. Reider's testimony Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm not even finished with the Day 4 transcript, but I couldn't hold this in any longer. If Ms. Reider were my chief piracy investigator and if she were telling the truth in her cross-examination (about her knowledge of her investigations and whether there were documents that could refresh her recollection), she would be fired. This is the kind of thing Microsoft tried to pull: witnesses testifying that black is white when any idiot knows it isn't. Judge Jackson called them on it. I'm still afraid Judge Kaplan won't. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:47:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12560 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:47:25 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA12557 for ; Thu, 20 Jul 2000 23:47:24 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P7N5>; Thu, 20 Jul 2000 23:51:25 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E73@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Choice Day 4 Trial quote Date: Thu, 20 Jul 2000 23:51:25 -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 like this quote even more (emphasis mine): (p. 697) 2 MR. GARBUS: My position is that they know that DeCSS 3 is not a pirating tool. My information. And I believe that 4 they may have made an attempt to determine that and may have 5 concluded what I have just said is so. Whether or not that ^^^^^^^^^^^^^^^^^^^ 6 goes to your ultimate question about whether or not the DeCSS ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 7 is an appropriate or inappropriate circumvention is something ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 8 else. But it seems to me what I am entitled to know is this. ^^^^^ 9 There are ten different utilities that with respect 10 to, let's say, the nine others, as I understand it, they did 11 no investigation, and that basically what you are dealing with 12 is an attempt to take a product away from, let's say, the 13 Linux source group, and that I think that what the MPA was ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 14 doing was basically protecting the licensing arrangement and ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 15 that this entire investigation had little and nothing to do ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ 16 with piracy. And I think they are aware of the fact that the ^^^^^^^^^^^ 17 stuff that's up on the Internet is not DeCSS material. Not 18 only the negative of it, but that they know that it's not. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:49:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12673 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:49:40 -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 XAA12670 for ; Thu, 20 Jul 2000 23:49:39 -0400 Message-ID: <20000721034820.4647.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Thu, 20 Jul 2000 20:48:20 PDT Date: Thu, 20 Jul 2000 20:48:20 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 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 --- sam th wrote: > In order to be *permanently* out there on the internet, > a piece of information currently requires three characteristcs: > > 1) It must be seen as pro-free-speech. > 2) Someone must try to censor it. > 3) News of 2 must be posted on Slashdot. > > I'm not kidding here, folks. Aside from my (and I hope > others) willingness to go to jail for this sort of thing, if those > three things happen, the software is *never* *going* *away*. It's > just not possible. I recall see a recent story (maybe in Wired?) about a group of a dozen or so people that bought an offshore oilrig in the North Sea that had fallen into disrepair. They paid an enormous sum of money to wire multiple T3 connections to it. They have moved in and declared themselves a nation. They are heavily armed with mounted M60 machine guns etc... You can only get on the platform by helicoptor or if they use the lift to pull you up from a boat. They don't like censorship. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 20 23:58:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12735 for dvd-discuss-outgoing; Thu, 20 Jul 2000 23:58:27 -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 XAA12732 for ; Thu, 20 Jul 2000 23:58:26 -0400 Received: from baron (max01-57.suba.com [206.69.121.249]) by suba01.suba.com (8.9.1a/8.9.1) with ESMTP id WAA07117 for ; Thu, 20 Jul 2000 22:57:35 -0500 (CDT) From: "sparky" To: dvd-discuss@eon.law.harvard.edu Date: Thu, 20 Jul 2000 22:57:22 -0500 MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: [dvd-discuss] Effective... Message-ID: <397783D2.4132.7DD8A3@localhost> In-reply-to: <200007210246.WAA22687@soggy-fibers.ai.mit.edu> References: <397769AD.17861.17B80D@localhost> X-mailer: Pegasus Mail for Win32 (v3.12c) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 20 Jul 2000, at 22:46, Robert S. Thau wrote: > sparky@suba.com writes: > > > > > > > Tim Neu @eon.law.harvard.edu on 07/20/2000 > 03:21:35 > > PM > >Surely Congress didn't intend > > siht ot eb na > ssecca lortnoc! > > Maybe not, but siht si na ssecca lortnoc if it > requires you to put the > text into a special "player" in order to > read it (a la licensed DVD > player), >according to the MPAA< and > maybe others (that is/may > be, govt authority) as well. > > And there are several other technological processes --- MPEG > decompression, A-to-D conversion, perhaps some internal digital format > conversions --- all of which are as necessary as CSS "decryption" to > accessing the video on a DVD, and at least one of which (MPEG > decompression) is much more computationally involved than CSS. > Certainly more so than gnihtyna ekil siht. > > MPEG decompression can't be plausibly described as access control > because the method is public knowledge. But if it weren't? You know my answer.. it's all about proprietary file formats, making them legally count the same as signatures. You can't copy them without the authority of the signer, or in other words, without another official signature. > > By this standard, the only way to judge whether something is an access > control process is the intent of the copyright holders, and the only > way to judge that is the copyright owners' declarations. In other > words, it's access control if they say it is. And by saying so, they > gain a permanent patent-like monopoly on the process. Good deal. > > (Of course, if you interpret the "effective access control" definition > to mean that the technological measure must *test* whether the viewer > has the copyright holder's authority --- meaning that there are cases > where it will *deny* access "in the ordinary course of its operation", > then this problem at least goes away...). Maybe.. :) sparky > > rst > > From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:06:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA12860 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:06:58 -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 AAA12857 for ; Fri, 21 Jul 2000 00:06:56 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA14395 for ; Fri, 21 Jul 2000 00:06:03 -0400 (EDT) Date: Fri, 21 Jul 2000 00:06:02 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] MPAA trial day 4 Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kaplan on Antitrust: I very much doubt that Kaplan is likely to rule for us on anti-trust issues, insofar as the following "exchange" suggests. Pages 722 et seq. 11 THE COURT: Excuse me. That is the only antitrust 12 allegation you have made in any pleading in this case. Now, I 13 suspect that you know, but in any case, I will say, that it is 14 impossible as a matter of law for the Congress of the United 15 States, by enacting a statute, or for a court of the United 16 States, by applying it, to violate the antitrust laws. 17 If there were an inconsistency between the DMCA and 18 the antitrust law, standard principles of law that have been 19 established in this country for 200 years, require the result 20 that because the Sherman Act was enacted in 1890, the Clayton 21 Act in 1914 and the Robinson-Patman Act in 1936, and the DMCA 22 in 1998, that the antitrust laws, to whatever extent they may 23 be inconsistent with the DMCA, are repealed. 24 Now, I don't see any inconsistency, and if there 25 were, it's not an issue in this lawsuit and let's just get on with this lawsuit. 2 MR. GARBUS: I don't think it's an appropriate 3 response at this time. We have submitted briefs to you on 4 that question. I don't believe that the DMC -- 5 THE COURT: What brief is that, Mr. Garbus? Could 6 you bring my attention to it, please? 7 MR. GARBUS: Yes. We have a brief where we talk 8 about Sega, Betamax and the Connectix case. I think it's the 9 reply brief, and it's my memory that in that brief we talk 10 about the holdings in those three cases, and we discuss the 11 issue of whether or not the DMCA has in effect overruled those 12 three case. 13 It is our view that it has not. And in each of those 14 three cases, as I interpret the cases, they had arguments 15 about fair use, but they also had arguments under general 16 copyright discussion about monopoly, and we have cited those 17 cases in our brief and that has been part of our argument. 18 THE COURT: I stand fully by everything I said. 19 Let's move on. And if there is any relevance to this line of 20 examination, I still haven't heard it, and it is now 12:25, 21 and I am warning you now that your time with this witness is 22 running out. And if you don't get to something relevant, I 23 will simply terminate the examination after fair warning. You 24 have had part of that warning now. 25 MR. GARBUS: I will stop examining this witness. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:19:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA12986 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:19:31 -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 AAA12983 for ; Fri, 21 Jul 2000 00:19:30 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id AAA03839 for ; Fri, 21 Jul 2000 00:18:41 -0400 (EDT) Date: Fri, 21 Jul 2000 00:18:41 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective... In-Reply-To: <397783D2.4132.7DD8A3@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, 20 Jul 2000, sparky wrote: > On 20 Jul 2000, at 22:46, Robert S. Thau wrote: > > (Of course, if you interpret the "effective access control" definition > > to mean that the technological measure must *test* whether the viewer > > has the copyright holder's authority --- meaning that there are cases > > where it will *deny* access "in the ordinary course of its operation", > > then this problem at least goes away...). Of course, such a regime still is injurious to fair use rights, if such rights cannot be taken advantage of by the consumer. Any sufficiently rigorous test can perverted to deny access to certain readers. "Sorry. Computers on thenation.com have been denied access to "A time to Heal." Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:19:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA12994 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:19:46 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA12991 for ; Fri, 21 Jul 2000 00:19:45 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id AAA16586; Fri, 21 Jul 2000 00:19:50 -0400 Message-ID: <3977CF66.9F6E693F@mit.edu> Date: Fri, 21 Jul 2000 00:19:50 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA trial day 4 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: > > Kaplan on Antitrust: > I very much doubt that Kaplan is likely to rule for us on anti-trust > issues, insofar as the following "exchange" suggests. > > Pages 722 et seq. > 11 THE COURT: Excuse me. That is the only antitrust > 12 allegation you have made in any pleading in this case. Now, I > 13 suspect that you know, but in any case, I will say, that it is > 14 impossible as a matter of law for the Congress of the United > 15 States, by enacting a statute, or for a court of the United > 16 States, by applying it, to violate the antitrust laws. > 17 If there were an inconsistency between the DMCA and > 18 the antitrust law, standard principles of law that have been > 19 established in this country for 200 years, require the result > 20 that because the Sherman Act was enacted in 1890, the Clayton > 21 Act in 1914 and the Robinson-Patman Act in 1936, and the DMCA > 22 in 1998, that the antitrust laws, to whatever extent they may > 23 be inconsistent with the DMCA, are repealed. > > 24 Now, I don't see any inconsistency, and if there > 25 were, it's not an issue in this lawsuit and let's just get on > with this lawsuit. > 2 MR. GARBUS: I don't think it's an appropriate > 3 response at this time. We have submitted briefs to you on > 4 that question. I don't believe that the DMC -- > 5 THE COURT: What brief is that, Mr. Garbus? Could > 6 you bring my attention to it, please? > 7 MR. GARBUS: Yes. We have a brief where we talk > 8 about Sega, Betamax and the Connectix case. I think it's the > 9 reply brief, and it's my memory that in that brief we talk > 10 about the holdings in those three cases, and we discuss the > 11 issue of whether or not the DMCA has in effect overruled those > 12 three case. > 13 It is our view that it has not. And in each of those > 14 three cases, as I interpret the cases, they had arguments > 15 about fair use, but they also had arguments under general > 16 copyright discussion about monopoly, and we have cited those > 17 cases in our brief and that has been part of our argument. > 18 THE COURT: I stand fully by everything I said. > 19 Let's move on. And if there is any relevance to this line of > 20 examination, I still haven't heard it, and it is now 12:25, > 21 and I am warning you now that your time with this witness is > 22 running out. And if you don't get to something relevant, I > 23 will simply terminate the examination after fair warning. You > 24 have had part of that warning now. > 25 MR. GARBUS: I will stop examining this witness. > > The issue is not what the DMCA says. The issue is how the MPAA and the DVD CCA are using the DMCA. Nothing in the DMCA dictates the structure you use to implement your technological protection measure. You could be a copyright holder, develop a process use it yourself and give it to no one else. You could be a third party selling a process for copyright holders to use or not use as they choose. Nothing says that you have to come together in a licensing cartel and use the cartel to implement your technological protection measure. Nothing in the DMCA forbids it, but I think the antitrust laws do. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:25:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13177 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:25:12 -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 AAA13174 for ; Fri, 21 Jul 2000 00:25:11 -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:2.21) with ESMTP id AAA08660 for ; Fri, 21 Jul 2000 00:24:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA23070; Fri, 21 Jul 2000 00:24:21 -0400 (EDT) Date: Fri, 21 Jul 2000 00:24:21 -0400 (EDT) Message-Id: <200007210424.AAA23070@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Choice Day 4 Trial quote In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E73@c100.clearway.com> References: <611C0CE12596D311B466009027D5E7591E4E73@c100.clearway.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Leland Ray writes: > 13 Linux source group, and that I think that what the MPA was > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > 14 doing was basically protecting the licensing arrangement and > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > 15 that this entire investigation had little and nothing to do > ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ > 16 with piracy. And I think they are aware of the fact that the > ^^^^^^^^^^^ > 17 stuff that's up on the Internet is not DeCSS material. Not > 18 only the negative of it, but that they know that it's not. Well, Garbus knows the stakes. Here's a warning shot from Kaplan, though, in another colloquy --- note in particular Kaplan's skepticism regarding the relevance of Betamax. It looks like Kaplan, at least, isn't going to accept "trust at work" as a reason to negate the application of the DMCA in the case of CSS. (The "indefinite patent-like monopoly" arguments which have been tossed around here may be something different, since those are grounded less in the antitrust laws, than in Constitutional restrictions on the powers of Congress to *create* monopolies, by awarding inventors exclusive rights to their works "for limited times". But it doesn't look like Garbus is raising those here, at least not to my eyes). This begins in the middle of p. 721 of the transcript of the 20th: [Garbus:] 21 In other words, the argument that we have been making 22 since the beginning of this case is that this is not a piracy 23 case, this is not an illegal copying case. Rather, this is a 24 monopoly case where the DVD licensees control who shall play 25 DVD hardware. 722 1 THE COURT: And would you point to the pleading that 2 you have filed that makes this a monopoly case, Mr. Garbus. 3 MR. GARBUS: My memory is it's in the answer. I 4 don't have the answer before me. 5 THE COURT: Yes. Well, I have looked at it since 6 yesterday, and it is not there. What you allege in the answer 7 is that Congress's enactment of the DMCA and the application 8 of that statute, presumably by the courts of this country, 9 violates the antitrust laws. 10 MR. GARBUS: If -- 11 THE COURT: Excuse me. That is the only antitrust 12 allegation you have made in any pleading in this case. Now, I 13 suspect that you know, but in any case, I will say, that it is 14 impossible as a matter of law for the Congress of the United 15 States, by enacting a statute, or for a court of the United 16 States, by applying it, to violate the antitrust laws. 17 If there were an inconsistency between the DMCA and 18 the antitrust law, standard principles of law that have been 19 established in this country for 200 years, require the result 20 that because the Sherman Act was enacted in 1890, the Clayton 21 Act in 1914 and the Robinson-Patman Act in 1936, and the DMCA 22 in 1998, that the antitrust laws, to whatever extent they may 23 be inconsistent with the DMCA, are repealed. 24 Now, I don't see any inconsistency, and if there 25 were, it's not an issue in this lawsuit and let's just get on 723 1 with this lawsuit. 2 MR. GARBUS: I don't think it's an appropriate 3 response at this time. We have submitted briefs to you on 4 that question. I don't believe that the DMC -- 5 THE COURT: What brief is that, Mr. Garbus? Could 6 you bring my attention to it, please? 7 MR. GARBUS: Yes. We have a brief where we talk 8 about Sega, Betamax and the Connectix case. I think it's the 9 reply brief, and it's my memory that in that brief we talk 10 about the holdings in those three cases, and we discuss the 11 issue of whether or not the DMCA has in effect overruled those 12 three case. 13 It is our view that it has not. And in each of those 14 three cases, as I interpret the cases, they had arguments 15 about fair use, but they also had arguments under general 16 copyright discussion about monopoly, and we have cited those 17 cases in our brief and that has been part of our argument. 18 THE COURT: I stand fully by everything I said. 19 Let's move on. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:32:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13292 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:32:52 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13289 for ; Fri, 21 Jul 2000 00:32:41 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA07875 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 00:34:22 -0400 Date: Fri, 21 Jul 2000 00:34:17 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] no contract in sale Message-ID: <20000721003417.A7861@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Leland Ray wrote: > > 8 THE COURT: But the facts are perfectly obvious. > 9 There is no contract between Warner and the ultimate > consumer. > 10 Warner sells the disks to whomever they sell them to. Tower > 11 buys them from somebody. > > 12 Tower then sells the disk to you or to whomever else > 13 and whatever rights you acquire beyond the naked ownership of > 14 the project, the hunk of plastic that constitutes the disk is > 15 a function of the Copyright Act and the DMCA and whatever > 16 other legislation is appropriate. > ... > > Under copyright law in absence of 1201, the defendents did nothing > wrong. The question then becomes, does 1201 apply, if if yes, does > 1201 make it illegal to distribute the programm known as DeCSS? Well, Marsha King is a lawyer and she testified that the DMCA was exactly intended to prevent users from making copies, as opposed to the Audio Home Recording Act, which assumed the user's rights to make copies after first sale. http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000719_ny_trial_transcript.html 488 ... 20 BY MR. GARBUS: 21 Q. What is the public position that Warner has taken with 22 respect to whether or not one can make copies of DVDs for 23 personal use? 24 MR GOLD: Your Honor, I think that's been asked and 25 answered already. 489 1 THE COURT: I don't remember it. Overruled. 2 A. You can't make a copy. But why? The DMCA specifically allows fair use. And general copyright law other than the DMCA allows fair use, as for example a professor's making a short extract of a film for classroom use. What King must be saying is that it is not allowed by license from the copyright holder. But where is that license, and where is the authorization for anyone to make a copy? (This is why I asked if Shamos had received authorization from anybody.) Sure, the MPAA and the studio could make up some papers, but I would expect them to say that nobody can make a copy so long as the copyright holder or the DVD manufacturer put some encryption on the product, because then the DMCA kicks in and essentially disallows any means to unencrypt it. NO MATTER WHAT THE LICENSE SAYS. Is this what Kaplan is saying? So then the question is, does the DMCA bar any fair use, and is it thereby in conflict with copyright law and must be struck down? Or, if it is a license matter, then is it a question of antitrust behavior that was not foreseen when the DMCA was passed? (If so, the argument of Boies in the Napster case may be relevant here.) From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 00:58:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA13931 for dvd-discuss-outgoing; Fri, 21 Jul 2000 00:58:58 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA13928 for ; Fri, 21 Jul 2000 00:58:57 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY1000D473TPL@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 21:57:29 -0700 (PDT) Date: Thu, 20 Jul 2000 22:12:08 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Here's a good site for info. In-reply-to: <20000720175532.19385.qmail@web514.mail.yahoo.com> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY1000D573TPL@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > --- "David A. Wagner" wrote: > > Yes, and I have a gripe about statements made, I think, at the trial: > > that "every encryption algorithm will be broken, sooner or later". > > That's a common misperception, but there are very good reasons > > to believe that it's just not true. (Of course, there's a kernel of > > truth in there -- namely, that designing secure encryption algorithms > > > is very hard to get right -- but that's very different, and in > > this case, the difference is important!) > > I think Bruce Schneier will blow this out of the water when he > testifies. > > If true, this statement would mean that e-commerce is fundamentally > flawed and online banking should be immediately stopped. > > Hopefully, Schneier put it in perspective with something like: "if > every atom of the universe (10^80 atoms) calculated 10^15 keys per > second for the next quadrillion 10^15 years (<10^23 seconds), then it > would search less than 1 part in 10^10 of the key space of a non-flawed > 128-bit key length encryption algorigthm. Thus a non-flawed algorithm > will almost certainly not be broken during the remaining life of the > univers, regardless of the advance of technology." Yes, and the distinction between a flawed and non-flawed implementation must be made clear. In addition it should be explained that the toughness of breaking an algorithm is fundamentally dictated by the mathematics behind it (which is not bounded by technological growth constraints) -- much more so than the speed or sophistication of the attempt at cracking it. Well actually the only reason I know enough to be able to say that above is probably becaused of the lucid way Bruce has explained these things in the past :o) I suspect that he'll handle it just fine. > Some references to algorithms which are widely believed to be > non-flawed (RSA, Blowfish, etc...) because they have withstood decades > of acedemic scrutiny under full disclosure conditions, should put this > to rest. The references that will work the best will probably be PGP (for email security) and SSL (all secure e-commerce essentially uses this.) The judge will likely have a much easier time understanding these, and citations about how secure it is can be made. (For example, these security mechanisms have almost assuredly been attacked far more vigorously than CSS.) > I'm sure the MPAA statements like the above will get the veins in > Schneiers neck bulging. If anybody can authoritatively refute that > point, it is Schneier. Short of a disgruntled NSA employee (which I would think would be the most devious witness possible) I would have to agree. :o) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 01:09:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14329 for dvd-discuss-outgoing; Fri, 21 Jul 2000 01:09:30 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA14326 for ; Fri, 21 Jul 2000 01:09:29 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id WAA29904 for ; Thu, 20 Jul 2000 22:08:34 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id WAA20420; Thu, 20 Jul 2000 22:06:44 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] no contract in sale Date: 20 Jul 2000 22:05:38 -0700 Organization: A poorly-installed InterNetNews site Lines: 29 Distribution: isaac Message-ID: <8l8ln2$ju2$1@blowfish.isaac.cs.berkeley.edu> References: <20000721003417.A7861@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > So then the question is, does the DMCA bar any fair use, Sounds like you're asking the right questions! Unfortunately, it seems that you will have to ask Kaplan for the answer to that one. Both parties would like Kaplan to adopt their view of the appropriate answer, but I'm not sure anyone can predict with certainty which way Kaplan will rule. Actually, I suspect you meant to ask: "Does the DMCA permit copyright holders to bar any fair use they like?" Note that the DMCA itself doesn't actually ban fair use. > and is it thereby in conflict with copyright law and must > be struck down? Well, wait a second there. Kaplan has suggested in his comments that, if there is a conflict between statutory law enacted before the DMCA and the DMCA, one would expect the DMCA to overrule the previous statutory law (in the absence of any special provisions). I think the questions you _meant_ to ask are closer to the following: "Is there a potential constitutional requirement that any copyright-like law must contain a "fair use" cut-out? If so, does the DMCA come in conflict with this requirement? If so, does the DMCA, in this way, become unconstitutional and thereby require Kaplan to strike it down?" Those are all very good questions, and there has been a lot of discussion on this list on these topics. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 01:30:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14550 for dvd-discuss-outgoing; Fri, 21 Jul 2000 01:30:46 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA14514 for ; Fri, 21 Jul 2000 01:30:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA07888 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 01:32:12 -0400 Date: Fri, 21 Jul 2000 01:32:07 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Livid and unauthorized copying Message-ID: <20000721013207.B7861@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000719_ny_trial_transcript.html I'm up to Franklin Fisher's testimony now and it appears to me that he started to talk about some sort of price theory regarding some putative free copies of DVDs. Then he was asked about Linux and LiViD, and his answer was interesting: 572 13 I should also mention -- perhaps I already did -- 14 that if it were true that the availability of LiViD players 15 was going to mean a great increase in sales for the movie 16 companies, I mean dollar sales, then the movie companies would 17 be promoting it, and they indeed may be promoting the creation 18 and sales of LiViD players but of course they would be doing 19 it under conditions of licensing involving the exploitation 20 for money of their intellectual property instead of the giving 21 away of it free. ... 574 2 ... And I certainly don't believe that the 3 availability of LiViD players is going to be of giant help in 4 that. It will be of some help. 5 Every application that's written for Linux makes 6 Linux a more interesting system, but it strikes me as simply 7 bizarre to suppose that one ought to permit unlicensed copying 8 in the hopes that this will provide an answer to the problems 9 in Microsoft. You might as well take that to extremes and 10 observe that if one were to cancel all copyright of its 11 software, that would take care of quite nicely a good deal of 12 the Microsoft problem, but it doesn't sound like a remedy 13 that, how shall I put it, is set up to fit the problem. [well, we shall see--but Microsoft is on notice already from the District Court judge that their copyright claims do not excuse antitrust monopoly violations.] Fisher seems to have mistakenly implied that LiViD was already an effort to make unlicensed copies of DVDs, instead of just an effort to play DVDs on Linux machines once one had bought the DVD. He is confusing the act of producing a DVD player that is not licensed by the DVDCCA, with making unauthorized copies of DVDs on Linux. And the court seems to have swallowed that, considering Kaplan's whining about ice picks and tires. Fisher testified because he was supposed to be some sort of economics expert. But here he pontificates about Linux, he is not an expert on Linux or the CSS technology, and he is making false assumptions he should not be allowed to get away with. In any case, his assertions about movie studio profits are quite irrelevant. If DeCSS is in violation of copyright law, it makes no difference whether the studios lose money or not, except for the purposes of damages, and the plaintiffs have already stipulated that no instance of DeCSS used in copying can be found, contrary to Fisher's assertion here that LiViD or Linux "permit[s] unlicensed copying." From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 01:37:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA14698 for dvd-discuss-outgoing; Fri, 21 Jul 2000 01:37:51 -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 BAA14695 for ; Fri, 21 Jul 2000 01:37:50 -0400 Message-ID: <20000721053627.3740.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Thu, 20 Jul 2000 22:36:27 PDT Date: Thu, 20 Jul 2000 22:36:27 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA trial day 4 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 Boy, Kaplan is really bold with this. The principle when there is conflict of laws is as Kaplan states: the latter law repeals the former. The problem with this is that Kaplan would have to rule that there WAS a conflict of laws as applied to this case, which would involve explict reasoning about DVD antitrust issues, wouldn't it. I hope the 2nd Circuit would find that goes to far. I think it is highly dubious to say that there is a conflict between the DMCA and the antitrust laws. I believe that it is also a principle that if you can interpret laws in such a way that they do not conflict, that you should do so -- ie assume there is no conflict unless you are forced into that conclusion. --- Jeremy A Erwin wrote: > Kaplan on Antitrust: > I very much doubt that Kaplan is likely to rule for us on anti-trust > issues, insofar as the following "exchange" suggests. > > > Pages 722 et seq. > 11 THE COURT: Excuse me. That is the only antitrust > 12 allegation you have made in any pleading in this case. Now, I > 13 suspect that you know, but in any case, I will say, that it is > 14 impossible as a matter of law for the Congress of the United > 15 States, by enacting a statute, or for a court of the United > 16 States, by applying it, to violate the antitrust laws. > 17 If there were an inconsistency between the DMCA and > 18 the antitrust law, standard principles of law that have been > 19 established in this country for 200 years, require the result > 20 that because the Sherman Act was enacted in 1890, the Clayton > 21 Act in 1914 and the Robinson-Patman Act in 1936, and the DMCA > 22 in 1998, that the antitrust laws, to whatever extent they may > 23 be inconsistent with the DMCA, are repealed. > > 24 Now, I don't see any inconsistency, and if there > 25 were, it's not an issue in this lawsuit and let's just get on > with this lawsuit. > 2 MR. GARBUS: I don't think it's an appropriate > 3 response at this time. We have submitted briefs to you on > 4 that question. I don't believe that the DMC -- > 5 THE COURT: What brief is that, Mr. Garbus? Could > 6 you bring my attention to it, please? > 7 MR. GARBUS: Yes. We have a brief where we talk > 8 about Sega, Betamax and the Connectix case. I think it's the > 9 reply brief, and it's my memory that in that brief we talk > 10 about the holdings in those three cases, and we discuss the > 11 issue of whether or not the DMCA has in effect overruled those > 12 three case. > 13 It is our view that it has not. And in each of those > 14 three cases, as I interpret the cases, they had arguments > 15 about fair use, but they also had arguments under general > 16 copyright discussion about monopoly, and we have cited those > 17 cases in our brief and that has been part of our argument. > 18 THE COURT: I stand fully by everything I said. > 19 Let's move on. And if there is any relevance to this line of > 20 examination, I still haven't heard it, and it is now 12:25, > 21 and I am warning you now that your time with this witness is > 22 running out. And if you don't get to something relevant, I > 23 will simply terminate the examination after fair warning. You > 24 have had part of that warning now. > 25 MR. GARBUS: I will stop examining this witness. > > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 01:53:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA15326 for dvd-discuss-outgoing; Fri, 21 Jul 2000 01:53:09 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA15323 for ; Fri, 21 Jul 2000 01:53:07 -0400 Received: from ppp.anonymizer.com (c02-076.015.popsite.net [64.24.73.76]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA26067 for ; Thu, 20 Jul 2000 22:54:30 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720224332.00a9aa20@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 22:53:29 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA trial day 4 In-Reply-To: <20000721053627.3740.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 10:36 PM 7/20/2000 -0700, Bryan Taylor wrote: >Boy, Kaplan is really bold with this. > >The principle when there is conflict of laws is as Kaplan states: the >latter law repeals the former. The problem with this is that Kaplan >would have to rule that there WAS a conflict of laws as applied to this >case, which would involve explict reasoning about DVD antitrust issues, >wouldn't it. I hope the 2nd Circuit would find that goes to far. > >I think it is highly dubious to say that there is a conflict between >the DMCA and the antitrust laws. I believe that it is also a principle >that if you can interpret laws in such a way that they do not conflict, >that you should do so -- ie assume there is no conflict unless you are >forced into that conclusion. Gawd, Bryan, we'll make you into a lawyer yet. (Sorry if you take that as an insult. ;-) You are (sort of) right on both counts. The first attempt should be to try to reconcile, not to find a conflict. But if a conflict is unavoidable, the later controls over the earlier - and while we're at it, the specific controls over the general (DMCA controls over gen'l copyright law, w/out getting into constitutional issues and such.) But remember that most all of antitrust law is judicially created, there is very little specificity in the statutes, the Sherman Act and the Clayton Act. Congress can legislatively overrule case law any time it wants, without having to try to reconcile with case law, so long as it is not acting unconstitutionally in doing so. BTW, Prof. Felton, called by the defense today, has a nice explication of the (lack of) bright line difference between source and object codes as expressive activity readable by humans. -------------------------------------------------------------------- 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 Fri Jul 21 02:01:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15470 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:01:22 -0400 Received: from ts0210.bates.edu (root@ts0205.bates.edu [134.181.72.135]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15467 for ; Fri, 21 Jul 2000 02:01:19 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id CAA20229 for ; Fri, 21 Jul 2000 02:06:17 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 21 Jul 2000 02:06:15 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA trial day 4 In-Reply-To: <20000721053627.3740.qmail@web513.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Thu, 20 Jul 2000, Bryan Taylor wrote: > Boy, Kaplan is really bold with this. > > The principle when there is conflict of laws is as Kaplan states: the > latter law repeals the former. The problem with this is that Kaplan > would have to rule that there WAS a conflict of laws as applied to this > case, which would involve explict reasoning about DVD antitrust issues, > wouldn't it. I hope the 2nd Circuit would find that goes to far. > > I think it is highly dubious to say that there is a conflict between > the DMCA and the antitrust laws. I believe that it is also a principle > that if you can interpret laws in such a way that they do not conflict, > that you should do so -- ie assume there is no conflict unless you are > forced into that conclusion. I don't see any conflict between laws, and (as mr I love tying cases) I think Kaplan is correct on the law here. The DMCA does not have significant impact on the Sherman/Clayton/etc acts on its face. However, the MPAA has created an arrangement in restraint of trade, and is now attempting to use the DMCA to get the US courts to enforce this illegal agreement. They've really got balls. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5d/Zot+kM0Mq9M/wRAnlyAJ905lHRmjGL10AV4jcDEoku2LsVBwCgsNd/ U01/g7lt8onmdPj0GYX41P4= =lTjI -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:07:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15620 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:07:22 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15617 for ; Fri, 21 Jul 2000 02:07:21 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id CAA16799; Fri, 21 Jul 2000 02:07:26 -0400 Message-ID: <3977E89E.8F02CD2B@mit.edu> Date: Fri, 21 Jul 2000 02:07:26 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Musings about antitrust and 1201 References: <3977CF66.9F6E693F@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 I just thought of something else about how Kaplan is interpreting the antitrust laws. It seems to me that Kaplan is warping the DMCA to get it to overrule the antitrust laws so that he can skirt the bias issue. One thing that is probably useful to bring up is a style of technological protection measure that does not require a player monopoly. This is stuff I've been thinking about for a while (not just in terms of antitrust, but in terms of reading 1201(a)(3)(B)), and I'd like people to take whacks at it so we can make my ideas stronger. The class of protection measures I am thinking of are similar, but subtly different to the DVD protection system: 1) Publish the encryption algorithm, and let anyone implement it. (If you obfuscate the publication by making it only object code people can reverse engineer it). 2) Publish (or even sell, I suppose, though I don't think people will pay much) the ciphertext. 3) Sell keys to the ciphertext. Why is this a technological protection measure someone might use rather than something I made up? Assuming the content is worth selling: 1) With the Internet there are low distribution costs (people might be willing to pass it around or mirror it), but they can still sell access to the work. 2) With valuable encrypted content third-parties might want to write players, and with permission to use a published implementation they are allowed to do this. This lowers the cost of providing to the public the players they want with the features they want. How does the DMCA enable this model? You can regulate what people do with the keys to the extent necessary to affirmatively establish they have the authority to use this key to decrypt the work, but you can't regulate key use that does not have to do with authorization. The DMCA is important because otherwise people will take your measure and _NOT_ implement your authorization model, making the sale of any key but the first irrelevant. This is what I think 1201(a)(3)(B) is really saying: 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. The way I'm reading it, requires binds to not just the information, process or treatment, but also to the authority of the copyright holder. If your measure does not require the authority of the copyright holder (and CSS doesn't except to the extent that the MPAA and DVD CCA have _chosen_ to set up a scheme that ties players to content), it is not effective access control. So I am reading 1201(a)(3)(B) as "effective access control" ties a technological protection measure to an authorization model. The MPAA (and possibly Kaplan) is reading this as you can tie players to content, partially repealing the antitrust laws, since tying players to content is one way to tie a measure to an authorization model and 1201(a) allows you to create effective access control. I am saying: No tying players to content is not the only way to tie a measure to an authorization model so there is no reason we should think the antitrust laws have been repealed, except maybe to the extent _necessary_ to tie measures to authorization models. [I am assuming that there is some legal doctrine somewhere that I don't know the name of that says that if two laws can be read to be consistent with each other or inconsistent with each other, the consistent reading is preferred unless there is a good reason to prefer the inconsistent reading (where I have no idea what "good reasons" are, but I am assuming they don't apply here)] As others have mentioned, tying players to content gives the MPAA superpatent-like rights to processes involved in playing that they claim are part of their authorization model, so players to content must also be wrong because it is unconstitutional. People will then bring up defrauding the measure (taking the phone cord out of the wall, imitating the external server, etc.) to claim that no technological measure could possibly require that you establish authority, which is where the reading of tying TPMs to authorization models comes from. That is where the "ordinary course of operation" bit comes in. If you're defrauding the measure, it's not the ordinary course of operation and it does not change the measure's effectiveness. Why, then, then is DeCSS not circumventing? Under this reading of 1201, 1201(a)(3)(A) is the other part of allowing authorization models and measures to be tied: You can't break the tie between the authorization model and the measure (unless, as provided elsewhere, you have some other legitimate purpose in doing so). 1) Plaintiffs never disclosed an authorization model so how do we know we didn't do the tying? 2) DeCSS decrypts exactly what the Xing player (among others) decrypts (modulo region coding and your DVD drive which the plaintiffs have stated time and again is not part of CSS) and plaintiffs' agents certified the Xing player. What could be wrong with DeCSS? It is a new implementation of an approved authorization model. What can't you do with this model that the MPAA does with CSS? Regulate what people do with plaintext, to the extent that you interfere with other rights they have under copyright law. 1201(b) lets you impose copy controls that protect the exclusive rights of the copyright holder, not copy controls that take away rights the public has (as opposed to conduct that the public engages in that is illegal, but tolerated). I have some thoughts about what measures are protected and which are not, but those are less relevant. But you can't decree no digital output, for instance, --- displaying on your fancy HDTV is a legitimate consumer use. You might release players that illegitmately regulate what you do with plaintext, but you can't stop people from implementing others that don't. Then 1201(c)(1) comes in, which says copyright owners cannot make eliminating fair use part of their authorization model. Essentially this view of the DMCA is extending cable descrambler law to the Internet. Given what I've heard on the list about the legislative record, this is a better way to read the law. To conclude, I'll emphasize again: the DMCA does not tell you how to tie a measure to a model (and tying measures to models does not have to violate the antitrust laws beyond the bare fact of that particular tie). If your choice of tie ties more than a measure to a model you have still violated the antitrust laws for that additional tying (as the MPAA and DVD CCA have done here). If we don't establish that then once this trial is over we will discover that Microsoft's file formats are technological protection measures (they implement a limited form of access control, password protection, if you so chose), and under 1201 Microsoft has discovered they can tie the player (Word) to the protected content in Word documents (especially as there are lots of Word documents, even password protected ones, that Microsoft owns the copyright to). If that isn't enought there'll be a new license agreement term --- you give Microsoft the exclusive right to implement access controls for your Office documents. Then Microsoft will sue under 1201 to shut down Corel, StarOffice, etc. and maybe even try to concoct a theory under 1201 to make the DoJ case go away. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:08:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15654 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:08:10 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15651 for ; Fri, 21 Jul 2000 02:08:04 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id BAA23878 for ; Fri, 21 Jul 2000 01:06:58 -0500 Message-ID: <3977E71F.58A29F1B@mninter.net> Date: Fri, 21 Jul 2000 01:01:03 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Ms. Reider's testimony References: <3977C436.CE4A85A6@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 Ravi Nanavati wrote: > > I'm not even finished with the Day 4 transcript, but I > couldn't hold this in any longer. If Ms. Reider were > my chief piracy investigator and if she were telling > the truth in her cross-examination (about her > knowledge of her investigations and whether there > were documents that could refresh her recollection), > she would be fired. I would consider myself a lucky anti-piracy executive if I found someone capable of performing her duties with such a feeble memory and feeble handle on the workings of her department. I'd probably give her a raise. moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:13:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15713 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:13:38 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15710 for ; Fri, 21 Jul 2000 02:13:37 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id CAA16832; Fri, 21 Jul 2000 02:13:37 -0400 Message-ID: <3977EA11.5AF61892@mit.edu> Date: Fri, 21 Jul 2000 02:13:37 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA trial day 4 References: <4.3.2.7.2.20000720224332.00a9aa20@127.0.0.1> 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 "James S. Tyre" wrote: > > At 10:36 PM 7/20/2000 -0700, Bryan Taylor wrote: > >Boy, Kaplan is really bold with this. > > > >The principle when there is conflict of laws is as Kaplan states: the > >latter law repeals the former. The problem with this is that Kaplan > >would have to rule that there WAS a conflict of laws as applied to this > >case, which would involve explict reasoning about DVD antitrust issues, > >wouldn't it. I hope the 2nd Circuit would find that goes to far. > > > >I think it is highly dubious to say that there is a conflict between > >the DMCA and the antitrust laws. I believe that it is also a principle > >that if you can interpret laws in such a way that they do not conflict, > >that you should do so -- ie assume there is no conflict unless you are > >forced into that conclusion. > > Gawd, Bryan, we'll make you into a lawyer yet. (Sorry if you take that as > an insult. ;-) > > You are (sort of) right on both counts. The first attempt should be to try > to reconcile, not to find a conflict. But if a conflict is unavoidable, > the later controls over the earlier - and while we're at it, the specific > controls over the general (DMCA controls over gen'l copyright law, w/out > getting into constitutional issues and such.) > > But remember that most all of antitrust law is judicially created, there is > very little specificity in the statutes, the Sherman Act and the Clayton > Act. Congress can legislatively overrule case law any time it wants, > without having to try to reconcile with case law, so long as it is not > acting unconstitutionally in doing so. > > BTW, Prof. Felton, called by the defense today, has a nice explication of > the (lack of) bright line difference between source and object codes as > expressive activity readable by humans. > > -------------------------------------------------------------------- > 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 My recent post also addresses the issue of reconciling laws, and I assumed there you reconciled them if you could, and I could reconcile the DMCA with antitrust laws (beyond a minimum, necessary, change), so I conclude that's what you have to do since Congress didn't address antitrust specifically, that I know of. I'm not sure how the issue of judge-made law would factor in that analysis. Would Congress have to still have to take some notice that they are repealing judge-made law beyond the minimum necessary amount, or do whole fields of judge-made law disappear if Congress touches a small part of a field? (which seems weird to me, but IANAL) - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:13:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15720 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:13:51 -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 CAA15717 for ; Fri, 21 Jul 2000 02:13:50 -0400 Message-ID: <20000721061231.16717.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Thu, 20 Jul 2000 23:12:31 PDT Date: Thu, 20 Jul 2000 23:12:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA trial day 4 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 --- sam th wrote: > I don't see any conflict between laws, and (as mr I love tying cases) > I think Kaplan is correct on the law here. The DMCA does not have > significant impact on the Sherman/Clayton/etc acts on its face. > However, the MPAA has created an arrangement in restraint of trade, > and is now attempting to use the DMCA to get the US courts to > enforce this illegal agreement. They've really got balls. I'm a little confused (as a result of ignorance) on the process. In the MS trial there were witnesses, a finding of fact, and then findings of law. It seems like most of the cases I've seen deliver the findings of fact together with the findings of law, so I assume this is the default. My question is: when does the defense get to makes its argument on the matters of law? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:19:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15833 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:19:10 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA15830 for ; Fri, 21 Jul 2000 02:19:09 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY100JPWAOBMY@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 20 Jul 2000 23:14:36 -0700 (PDT) Date: Thu, 20 Jul 2000 23:29:39 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Here's a good site for info. In-reply-to: <8l7rk8$jd8$1@blowfish.isaac.cs.berkeley.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY100JPXAOCMY@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > Ravi Nanavati wrote: > > Given that the MPAA is saying it is almost true. It all depends on > > what the word "encryption" means. Every encryption scheme that > > meets their requirements (no external source of authorization and > > software players, > ^^^^^^^^^^^^^^^^ > > Ahh, there's your mistake, right there! I -- and many other cryptographers > -- have been saying for some time that, if you want copy protection, you > certainly can't build software players. > > Security goes right out the window if you build software players. Period. > > Hollywood may not want to hear that, but you don't always get what you want. It wasn't Hollywood's idea. It was Intel's. It was at Intel's insistence that the CSS consortium create a system for granting licences to software vendors. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:30:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA15922 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:30:41 -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 CAA15900 for ; Fri, 21 Jul 2000 02:30:37 -0400 Received: by mits_perth_com1.mitswa.com.au with Internet Mail Service (5.5.2650.21) id ; Fri, 21 Jul 2000 14:23:20 +0800 Message-ID: <54A50136B6CAD3118FBD00C00D00DDEF0371EC@mits_perth_com1.mitswa.com.au> From: "McMeikan, Andrew" To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Microsoft support of MPAA, possible reason. Date: Fri, 21 Jul 2000 14:23:10 +0800 MIME-Version: 1.0 X-Mailer: Internet Mail Service (5.5.2650.21) Content-Type: text/plain Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I remember some posts ago someone noticed that MS is supporting the MPAA's legal case. The link below may explain this. It seems that MS have a patent on their ASF format and have closed down an opensource applications (reverse engineered) use of the format. The application continues but is now a little crippled. I do not know if there would be any legal relationship between patents and a TPM but might be worth being aware of. here is the link. http://www.geocities.com/virtualdub/virtualdub_news.html hope it helps. cya, Andrew... From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:40:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA16065 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:40:04 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA16062 for ; Fri, 21 Jul 2000 02:40:03 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id CAA16941; Fri, 21 Jul 2000 02:40:09 -0400 Message-ID: <3977F048.D1F9A1A5@mit.edu> Date: Fri, 21 Jul 2000 02:40:08 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Re: Musings about antitrust and 1201 References: <3977CF66.9F6E693F@mit.edu> <3977E89E.8F02CD2B@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 One small bugfix in my musings. Tying players to _sold_ content is the problem (if you want more compensation for sold content raise the price, don't extract it through player restrictions), but DVDs are sold so this is distinction has no impact for us. Tying players to content that isn't sold (either its free or provided as a service) is another matter entirely, that we do not need to go into. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 02:49:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA16176 for dvd-discuss-outgoing; Fri, 21 Jul 2000 02:49:43 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA16173 for ; Fri, 21 Jul 2000 02:49:42 -0400 Received: from ppp.anonymizer.com (c02-076.015.popsite.net [64.24.73.76]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA00651 for ; Thu, 20 Jul 2000 23:51:08 -0700 (PDT) Message-Id: <4.3.2.7.2.20000720233522.00aa0ae0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 20 Jul 2000 23:44:36 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] MPAA trial day 4 In-Reply-To: <3977EA11.5AF61892@mit.edu> References: <4.3.2.7.2.20000720224332.00a9aa20@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:13 AM 7/21/2000 -0400, Ravi Nanavati wrote: >My recent post also addresses the issue of reconciling laws, and I >assumed there you reconciled them if you could, and I could >reconcile the DMCA with antitrust laws (beyond a minimum, necessary, >change), so I conclude that's what you have to do since Congress >didn't address antitrust specifically, that I know of. I'm not sure >how the issue of judge-made law would factor in that analysis. Would >Congress have to still have to take some notice that they are repealing >judge-made law beyond the minimum necessary amount, Nope. > or do whole fields of >judge-made law disappear if Congress touches a small part of a field? Depends on what Congress touches, but generally, as I said, Congress can override judge-made law at will, so long as not unconstitutional. Happens not infrequently, though I'm too brain-fried at the moment to come up with some good examples. >(which seems weird to me, but IANAL) Ah, but I am. ;-) It really isn't that weird in the broad picture of things, since it is the power of Congress, not the courts, to make law in the first instance. In theory, at least, the courts are only supposed to interpret the law (again here excluding arguments that the statute itself is unconstitutional). -------------------------------------------------------------------- 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 Fri Jul 21 03:15:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA16267 for dvd-discuss-outgoing; Fri, 21 Jul 2000 03:15:17 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA16264 for ; Fri, 21 Jul 2000 03:15:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id DAA07972 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 03:16:44 -0400 Date: Fri, 21 Jul 2000 03:16:39 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Musings about antitrust and 1201 Message-ID: <20000721031639.C7861@eldritchpress.org> References: <3977CF66.9F6E693F@mit.edu> <3977E89E.8F02CD2B@mit.edu> <3977F048.D1F9A1A5@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <3977F048.D1F9A1A5@mit.edu>; from ravi_n@mit.edu on Fri, Jul 21, 2000 at 02:40:08AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 02:40:08AM -0400, Ravi Nanavati wrote: > One small bugfix in my musings. Tying players > to _sold_ content is the problem (if you want > more compensation for sold content raise the > price, don't extract it through player > restrictions), but DVDs are sold so this is > distinction has no impact for us. Tying players > to content that isn't sold (either its free or > provided as a service) is another matter > entirely, that we do not need to go into. Not sure if I fully comprehend your musings, but it would seem to me that MPAA/DVDCCA has a problem enforcing the tying of licensed content and licensed players. They wish to use DMCA to do this. However, in the Diamond Rio case the manufacture of a player that was not licensed was permitted even though more illegal copies could thereby be made. The justification there was that the computer has another legitimate use than duplicating music, and so the AHRA could not rule. Thus insofar as LiViD is an attempt to make a Linux DVD player, without licensing from DVDCCA, which can play DVDs that are not encrypted, or to use DVD-RAMs to record computer data, it has a legitimate use and thereby cannot be restrained under DMCA even. Insofar as DeCSS is intended to produce LiViD players, then its use is fully legitimate even under DMCA. MPAA set out to make a sort of Audio Home Recording Act for themselves, but stronger, to prevent anyone using their content in ways that they did not wish. The problem is that in doing so they had to take over all digital media not just movies. As others have pointed out here, if MPAA prevails, then every other digital content producer will try to use DMCA for the same reasons. And there is no reason to believe that Congress intended to accept all these consequences of DMCA. Perhaps if DMCA is overturned then Congress may have a chance to revisit these debates. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 03:59:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA16740 for dvd-discuss-outgoing; Fri, 21 Jul 2000 03:59:44 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA16737 for ; Fri, 21 Jul 2000 03:59:37 -0400 Date: Fri, 21 Jul 2000 00:56:32 -0700 Message-Id: <200007210056.AA677642648@mail.virtualrecordings.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Robin Gross" To: CC: , Subject: [dvd-discuss] Johansen Shines on Witness Stand in Defense of his Software X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: July 20, 2000 Universal City Studios v. 2600 Magazine EFF Fights Movie Studios' Attempt to Monopolize DVD Players Johansen Shines on Witness Stand in Defense of his Software Jon Johansen, the Norwegian teen-ager who created DeCSS, the software at the heart of this case, took the witness stand Thursday morning to testify for the defense. Johansen explained that he was attempting to build a DVD player for Linux when he and two other members of the group MoRE developed the code. He also explained that DeCSS was written as a Windows executable file because the project had to be tested first on Windows since Linux could not read a DVDs UDF files. This testimony blew a huge hole in both the movie studios' and the judge's reasoning who assumed that because the code was written for Windows it had nothing to do with developing a Linux DVD player, as EFF's defense team has claimed for months. The courageous teen also revealed that the MPAA filed charges against Jon and his father Per, instigating the Norwegian Economic Crime Unit to ask Jon to answer questions at the police station in January 2000. His testimony revealed a flaw in the judge's thinking, who has previously stated in several opinions that the teen was arrested and has inferred guilt therefrom. Not only was Johansen never arrested for developing the software, the Norwegian government awarded Jon a prestigious award for his excellent grades in high school and his contribution to society for creating DeCSS. Although it did not come out in court today, the Norwegian parliament has also issued the young teen a formal apology for the treatment he has undergone as a result of publishing the code. In stark contrast to the veracity and integrity Johansen displayed on the witness stand in the face of a powerful industry trying to crush him, the head of the MPAA's world-wide anti-piracy effort Mikhail Reider testified next. The MPAA investigator who was previously an intelligence officer for the DEA and FBI gave testimony replete with "I can't recall", "I don't know", and "I can't remember" to the most basic questions involving the MPAA's investigative efforts in this case, reminiscent of the Jack Valenti deposition. The credibility and truthfulness of this witness was called into further doubt when shown and asked about internal MPAA reports sent to her that contradicted her testimony and were obtained by EFF's defense team through discovery battles. At the conclusion of Reider's testimony, the Plaintiff's rested their case. EFF's defense team called Edward Felton to the witness stand who is an expert on technology and testified for the Department of Justice in its case against Microsoft. Felton, who likened "hacking" to "tinkering" explained that the public is ultimately served by the disclosure of information learned from publishing the results of encryption research and security testing. He also testified to the expressive nature of object code and that he can read it and encourages his students to read and write it as part of their education. "In addition to executing it, you can learn a lot from it," stated one of the world's most highly respected computer experts. Journalist and publisher of 2600 Magazine Eric Corley, who is more commonly known by his pen name, Emmanuel Goldstein took the stand in his own defense at the late afternoon and will return first thing Thursday morning at 9:00. Goldstein explained many of the important contributions to computer security, technology innovation, and the protection of privacy that his magazine was responsible for since its creation in 1984. He also described his extensive journalistic background which includes having been published in the NY Times and the Wall Street Journal among countless others and testifying before Congress on technology issues. Judge Kaplan provided some sense of his thinking saying that Web publisher 2600.com had a reasonably strong case that the issuance a permanent injunction against it was a futile act due to the mass proliferation of the software. Fond of analogies, the judge stated the defense had a reasonably strong case for the proposition that the barn is unlocked and this horse is out. (See pulled quote from transcript below). In response to questions regarding the movie studios' right to control who can make DVD players, the judge gave some indication that he believed the DMCA may over-rule antitrust law in the U.S., something to be found no where in the legislative history of the statute. Thursday morning, Emmanuel Goldstein will complete his testimony with the cross examination of him by Proskaur lawyer Leon Gold. EFF's defense team also expects to call Matt Pavlovich, a developer of open source DVD player tools and Professor Peterson of Princeton University's Computer Science department to the stand. >From trial transcript of July 20, 2000, Pages 670-1 17 Now, it seems to me also that what the MPAA wants is 18 a legal determination that unlocking this barn was illegal, 19 and so the next guy who considers unlocking another barn is 20 going to have something serious to think about. I suspect you 21 are also asking me to issue an injunction against the guy who 22 unlocked this barn not to unlock it again even though there is 23 no horse in it. So, you know, I don't know that this witness 24 has any light to shed on that subject. Page 674: 6 courts have said for 300 years, at least that courts of 7 equity ought not to use the equitable power of injunction to 8 try to accomplish the impossible or to perform something which 9 is entirely futile, and therefore, in the exercise of 10 discretion, given the broad prevalence of this particular 11 utility, this time the court declines to issue the injunction 12 because it would do no practical good. Transcript of today's hearing: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000720_ny_trial_transcript.html An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ RELATED COVERAGE: Norwegian Teenager Appears at Hacker Trial He Sparked By Carl Kaplan, NY Times http://www.nytimes.com/library/tech/00/07/cyber/cyberlaw/21law.html (This is one of the best articles yet written about this case). DVD-Hacker Trial Judge Says Horsefeathers to Movie Studios' Injunction Demands By Greg Lindsay, Inside.com http://www.inside.com/story/Story_Cached/0,2770,7070_7,00.html ---------------------------------------------------------------- The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 04:48:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA17450 for dvd-discuss-outgoing; Fri, 21 Jul 2000 04:48:45 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA17447 for ; Fri, 21 Jul 2000 04:48:43 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id BAA31324 for ; Fri, 21 Jul 2000 01:47:52 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id BAA20721; Fri, 21 Jul 2000 01:46:02 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 21 Jul 2000 01:45:52 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8l92k0$k7g$1@blowfish.isaac.cs.berkeley.edu> References: <8l7rk8$jd8$1@blowfish.isaac.cs.berkeley.edu> <0FY100JPXAOCMY@mta5.snfc21.pbi.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Hsieh wrote: > It wasn't Hollywood's idea. It was Intel's. It was at Intel's insistence > that the CSS consortium create a system for granting licences to software > vendors. Hmm. That's an interesting datapoint. I didn't realize that was part of the politics. Thanks for posting that comment! Was your suggestion that we should blame Intel, not Hollywood, for the existence of software players and the insecurity of the DVD platform? If so, can I ask a few questions? Noone was forcing Hollywood to accept such a request from Intel, right? Couldn't Hollywood have packed their bags and simply withheld their content and refrained from releasing their movies on such an insecure platform, if they were truly worried about its security? If Hollywood accepted the insecurity (knowingly, or negligently), how is it that Johansen and 2600 and Intel get all the blame, and Hollywood get none of it? (Apart from the suggestion that Hollywood has the best PR offices! :-) Maybe I'm missing something. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 05:12:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA17625 for dvd-discuss-outgoing; Fri, 21 Jul 2000 05:12:41 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA17622 for ; Fri, 21 Jul 2000 05:12:29 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id FAA08094 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 05:14:13 -0400 Date: Fri, 21 Jul 2000 05:14:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] perfect copies Message-ID: <20000721051408.D7861@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From the MPAA web site: "In late 1999, a small group of hackers in Europe worked to descramble the CSS encryption system for DVDs and created an unauthorized software utility commonly referred to as DeCSS. A computer that has the DeCSS utility can use it to break the CSS code on DVDs making it possible for motion pictures in DVD format to be decrypted and illegally copied onto a computer's hard-drive for further distribution over the Internet or otherwise, in perfect, digital format. DeCSS is akin to a tool that breaks the lock on your house." http://www.mpaa.org/Press/default.HTM So far the trial has not produced any testimony that decrypted DVDs can suffer "further distribution over the Internet or otherwise, in perfect, digital format." What is the basis for this claim? If it is false, what is the point of the lawsuit? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:26:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19632 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:26:22 -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 HAA19629 for ; Fri, 21 Jul 2000 07:26:20 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LBPUK14020 for ; Fri, 21 Jul 2000 14:25:31 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 14:25:30 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 20 Jul 2000, David A. Wagner wrote: >Yes, and I have a gripe about statements made, I think, at the trial: that >"every encryption algorithm will be broken, sooner or later". That's a >common misperception, but there are very good reasons to believe that it's >just not true. Not in the least part precipitated by half-witted depictions of crypto in popular movies and series etc. You know, the kind found in 'Sneakers' and 'La Femme Nikita': crypto absent math. (Of course, there's a kernel of truth in there -- namely, >that designing secure encryption algorithms is very hard to get right -- >but that's very different, and in this case, the difference is important!) It's worth noting that RSA is still very much unbroken, even if it isn't a stream cipher. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:27:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19721 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:27:51 -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 HAA19716 for ; Fri, 21 Jul 2000 07:27:50 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13FaxK-0005bd-00; Fri, 21 Jul 2000 13:27:02 +0200 Received: from localhost by sites.inka.de with local id 13FaxL-0006el-00; Fri, 21 Jul 2000 13:27:03 +0200 Date: Fri, 21 Jul 2000 13:27:03 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 4 Message-ID: <20000721132703.A21726@inka.de> References: <20000721051408.D7861@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000721051408.D7861@eldritchpress.org>; from eldred@eldritchpress.org on Fri, Jul 21, 2000 at 05:14:08AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I presume the following is a transcription error, but can't piece together what was meant, can someone who wa there she some light: Page 760 14 A. That's a hard question. I would say they are abstract in 15 different ways. There are certainly some things which you can 16 learn more fruit any from source code. ^^^^^^^^^ Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19774 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:29:19 -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 HAA19771 for ; Fri, 21 Jul 2000 07:29:18 -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:2.21) with ESMTP id HAA29404 for ; Fri, 21 Jul 2000 07:28:30 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA24153; Fri, 21 Jul 2000 07:28:29 -0400 (EDT) Date: Fri, 21 Jul 2000 07:28:29 -0400 (EDT) Message-Id: <200007211128.HAA24153@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Re: Musings about antitrust and 1201 In-Reply-To: <20000721031639.C7861@eldritchpress.org> References: <3977CF66.9F6E693F@mit.edu> <3977E89E.8F02CD2B@mit.edu> <3977F048.D1F9A1A5@mit.edu> <20000721031639.C7861@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > However, in the Diamond Rio case the manufacture of a player that > was not licensed was permitted even though more illegal copies > could thereby be made. The justification there was that the > computer has another legitimate use than duplicating music, and so > the AHRA could not rule. And the legislative history of the DMCA shows that Congress intended the DMCA to be interpreted in the same fashion. Ashcroft: ... 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. ... 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. In other words, if a player has legitimate functions, but also exposes content to the possibility of unauthorized duplication, it's legit. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:30:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19855 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:30:54 -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 HAA19852 for ; Fri, 21 Jul 2000 07:30:54 -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:2.21) with ESMTP id HAA29485 for ; Fri, 21 Jul 2000 07:30:06 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA24162; Fri, 21 Jul 2000 07:30:05 -0400 (EDT) Date: Fri, 21 Jul 2000 07:30:05 -0400 (EDT) Message-Id: <200007211130.HAA24162@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 4 In-Reply-To: <20000721132703.A21726@inka.de> References: <20000721051408.D7861@eldritchpress.org> <20000721132703.A21726@inka.de> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner writes: > I presume the following is a transcription error, but can't piece together > what was meant, can someone who wa there she some light: > > Page 760 > 14 A. That's a hard question. I would say they are abstract in > 15 different ways. There are certainly some things which you can > 16 learn more fruit any from source code. > ^^^^^^^^^ "from any" makes sense there. Looks to me like a typo in phonetic transcription. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:34:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19904 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:34:25 -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 HAA19901 for ; Fri, 21 Jul 2000 07:34:23 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LBXZP14984 for ; Fri, 21 Jul 2000 14:33:35 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 14:33:34 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <20000720131437.A18545@thud.reric.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000, Eric Seppanen wrote: >And that's why I don't see the relevance of the testimony regarding the >fundamental weaknesses in CSS. Because even if they'd done it right, the >algorithms and keys could still be found by reverse-engineering, and we'd >all still be here. True enough. But leaving holes in the cipher which lets further keys be discovered is a big blunder and something no proficient cryptographer would slip by in a form which can be exploited in a mere three days. Again, they could have just killed the Xing key and happily resumed their normal activities if they'd done their job in the first place. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:44:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA19990 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:44:56 -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 HAA19987 for ; Fri, 21 Jul 2000 07:44:54 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LBi5x16208 for ; Fri, 21 Jul 2000 14:44:05 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 14:44:04 +0300 (EET DST) From: Sampo A Syreeni To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] no contract in sale In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E6F@c100.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 Thu, 20 Jul 2000, Leland Ray wrote: >"There is no contract between Time Warner and the ultimate consumer." > >"...whatever rights you acquire...is a function of the Copyright Act >and the DMCA..." It seems nice but it isn't. It siply tells us that Kaplan is buying the Ps' theory. That is, no explicit authorization means no authorization. >I wish that the defense could call an expert witness on legal >matters. I would be much more comfortable if a law professor was >able to discuss the copyright and DMCA issues on the stand. >Then Garbus could reinforce it. Isn't there some sort of rule against this? I thought the Court has the absolute authority over the interpretation of law as it stands... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 07:50:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA20138 for dvd-discuss-outgoing; Fri, 21 Jul 2000 07:50:03 -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 HAA20135 for ; Fri, 21 Jul 2000 07:50:02 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LBnDY16612 for ; Fri, 21 Jul 2000 14:49:13 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 14:49:13 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <8l7s29$je7$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 20 Jul 2000, David A. Wagner wrote: >After all, if the MPAA really worried about the harm, there are >things they could have done to fix the weak cipher! If they knew >about the weaknesses in 1997 (and, although I hadn't known this, >apparently noone is disputing that they did know about the flaw >as far back as 1997), they could have spent the past 3 years fixing >the problem! If this was really so dangerous to their business model, >they could have done something. Instead, Hollywood did nothing. But... DeCSS does not employ the Stevenson attack. Notice how few DVD's have actually come out after DeCSS was published and the little effect revoking the Xing key could have had. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 08:30:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21455 for dvd-discuss-outgoing; Fri, 21 Jul 2000 08:30:33 -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 IAA21452 for ; Fri, 21 Jul 2000 08:30:31 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LCTgs20734 for ; Fri, 21 Jul 2000 15:29:42 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 15:29:41 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000 Michael.A.Rolenz@aero.org wrote: >What he may also be asking himself is "What will the MPAA get from 2600 if >they get their verdict?" - They haven't been able to prove ANY damages that >are compensable. (That's one thing Garbus is driving at with his "Can you >prove ANYBODY ANYWHERE AT ANYTIME DID IT?") So they aren't going to get >much money. In a similar vein, it's a funky thought overall that damages could be awarded based on 1201 - after all, all the possible damage comes from copyright infringement. Anything left over would be highly speculative. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 08:32:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21541 for dvd-discuss-outgoing; Fri, 21 Jul 2000 08:32:08 -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 IAA21538 for ; Fri, 21 Jul 2000 08:32:07 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LCVII21112 for ; Fri, 21 Jul 2000 15:31:18 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 15:31:18 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 20 Jul 2000 Michael.A.Rolenz@aero.org wrote: >No. I don't think he want to show that they failed to mitigate damage. If >he does that then he is admitting that his client has caused damage. That shouldn't be a problem if the 'damage' would only amount to taking away from the Ps something they weren't entitled in the first place, like control over the player market. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 08:42:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21716 for dvd-discuss-outgoing; Fri, 21 Jul 2000 08:42:37 -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 IAA21713 for ; Fri, 21 Jul 2000 08:42:26 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6LCfY421903 for ; Fri, 21 Jul 2000 15:41:34 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 21 Jul 2000 15:41:34 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! In-Reply-To: <3977A253.BEAC2D21@mediaone.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 Jul 2000, Eric Eldred wrote: >Where did Shamos get the authority to decrypt "Sleepless >in Seattle"? Who gave it to him and under what authority? >Did the copyright holder do so, the MPAA (which doesn't >own the copyright), the CSS owners, or who? Wait just a second. Wasn't there something in the transcripts/depositions to suggest that the studios actually cannot grant the right to decrypt with an unauthorized player without breaching their contract with the DVD-CCA? This would seem to be in direct contradiction with what Shamos did... Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 08:43:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21727 for dvd-discuss-outgoing; Fri, 21 Jul 2000 08:43:34 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA21720 for ; Fri, 21 Jul 2000 08:42:44 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY100350RY37Y@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 05:27:39 -0700 (PDT) Date: Fri, 21 Jul 2000 05:40:07 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Here's a good site for info. In-reply-to: <8l92k0$k7g$1@blowfish.isaac.cs.berkeley.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY100351RY37Y@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David Wagner wrote: > Paul Hsieh wrote: > > It wasn't Hollywood's idea. It was Intel's. It was at Intel's insistence > > that the CSS consortium create a system for granting licences to software > > vendors. > > Hmm. That's an interesting datapoint. I didn't realize that was part > of the politics. Thanks for posting that comment! > > Was your suggestion that we should blame Intel, not Hollywood, for the > existence of software players and the insecurity of the DVD platform? I am just pointing it out because I happen to know this. Intel is a pretty slimey company that can be blamed for all sorts of things. Of course in the end the DVD CCA is who wrote up the licence agreements and who convinced the MPAA that it was the way to go. > If so, can I ask a few questions? Noone was forcing Hollywood to accept > such a request from Intel, right? Couldn't Hollywood have packed their > bags and simply withheld their content and refrained from releasing > their movies on such an insecure platform, if they were truly worried > about its security? Intel makes a motherboards which may or may not be compatible with DVD drives depending on what Intel felt like. Nuff said? Intel was one of many entities consulted on the licencing terms for CSS. While most of other vendors suggested that hardware-only was the only way to make CSS secure, Intel (and possibly some graphics card vendors, but I don't recall exactly) was essentially representing all of the interests of software players and lobbied for allowing software players. If I recall correctly, I think that initially the CSS consortium was leaning towards disallowing software players without a some kind of hardware dongle, but Intel convinced them otherwise (see paragraph above.) The licensing agreement was modified with a number of rules (for e.g., the vendor must disable any debuggers running in the system -- something that apparently some of them have failed to do, they must encrypt their keys within their executable, etc., etc) and restrictions (only a handful of core developers are allowed access to the true keys) and (I believe) a penalty (I believe this where the $1million figure comes from) for failing to properly guard the CSS secrets as outlined in the agreement. At least this is my understanding of it. Of course it lead some vendors to reason that they didn't need to outrun the bear that was chasing them -- they just needed to outrun the other people who were trying to run away from the bear (looks like Xing won't be making the olympics.) > [...] If Hollywood accepted the insecurity (knowingly, > or negligently), how is it that Johansen and 2600 and Intel get all the > blame, and Hollywood get none of it? (Apart from the suggestion that > Hollywood has the best PR offices! :-) Maybe I'm missing something. You are not missing anything. :o) Its like I said, the DVD CCA needs to answer to the MPAA for why the algorithm that they assured them would not be broken has been broken. I believe the DVD- CCA is misdirecting the MPAA by telling them that it was all the fault of the people that created/distributed DeCSS and that winning this lawsuit will make it all better. So as long as we are querying each other -- Is Clinton *also* partly to blame? What I mean is, had the DVD-CCA been allowed to use, say 128 bits, could the CSS algorithm have been fixed to allowed them to rely on their "revoke the bad keys" strategy? Or is the CSS algorithm more fundamentally flawed? Or is this not yet known? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 08:44:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA21777 for dvd-discuss-outgoing; Fri, 21 Jul 2000 08:44:16 -0400 Received: from upright.CS.Princeton.EDU (root@upright.CS.Princeton.EDU [128.112.136.7]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA21767 for ; Fri, 21 Jul 2000 08:44:05 -0400 Received: from cs.princeton.edu (hamilton [128.112.104.27]) by upright.CS.Princeton.EDU (8.10.2/8.10.2) with ESMTP id e6LCgmN24990 for ; Fri, 21 Jul 2000 08:42:48 -0400 (EDT) Message-ID: <397845A7.C12251F7@cs.princeton.edu> Date: Fri, 21 Jul 2000 08:44:23 -0400 From: "Edward W. Felten" Organization: Dept. of Computer Science, Princeton University X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 4 References: <20000721051408.D7861@eldritchpress.org> <20000721132703.A21726@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: > > I presume the following is a transcription error, but can't piece together > what was meant, can someone who wa there she some light: > > Page 760 > 14 A. That's a hard question. I would say they are abstract in > 15 different ways. There are certainly some things which you can > 16 learn more fruit any from source code. > ^^^^^^^^^ > I can clear this up, since I'm the one who said it. It should say "fruitfully" rather than "fruit any". From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 09:42:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA23134 for dvd-discuss-outgoing; Fri, 21 Jul 2000 09:42:08 -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 JAA23131 for ; Fri, 21 Jul 2000 09:42:06 -0400 Received: from jy01 (user-2inih27.dialup.mindspring.com [165.121.68.71]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id JAA22746 for ; Fri, 21 Jul 2000 09:41:17 -0400 (EDT) Message-Id: <200007211341.JAA22746@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 21 Jul 2000 09:36:11 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] Chip Off In-Reply-To: References: <20000720131437.A18545@thud.reric.net> Mime-Version: 1.0 Content-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 Carl Kaplan's article today in the NY Times cyber edition: After his son left the witness chair, Per Johansen told a reporter in the courtroom hallway that his son had done "very well." He noted that Jon's grandfather fought the Nazis in World War II. He said that he himself fought communism in Europe in the 1980s by working as a secret courier for Solidarity leaders in Poland, carrying money into the country and smuggling out documents. "Jon is in an historical line," Per Johansen said proudly. "He is fighting for freedom." http://www.nytimes.com/library/tech/00/07/cyber/cyberlaw/21law.html From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 11:18:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24552 for dvd-discuss-outgoing; Fri, 21 Jul 2000 11:18:27 -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 LAA24549 for ; Fri, 21 Jul 2000 11:18:25 -0400 Received: from jy01 (user-2inih27.dialup.mindspring.com [165.121.68.71]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id LAA08888 for ; Fri, 21 Jul 2000 11:17:36 -0400 (EDT) Message-Id: <200007211517.LAA08888@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 21 Jul 2000 11:12:04 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Ms. Reider's testimony In-Reply-To: <3977E71F.58A29F1B@mninter.net> References: <3977C436.CE4A85A6@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reider was articulate and memory-rich during direct examination. Her artfully empty-tank mode appeared with cross. This has been the pattern of many witnesses. Indeed, only cross produces enough jolt to keep the audience alert, when either side attempts to paint a portrait of pure deviousness. Direct is usually just creampuff repeat for the trial record of what is in affadavits and depositions. You can see who is supporting who in the courtroom by who is snoozing and who is smiling at the testimony. That applies to Judge Kaplan and the attorneys. Jeminy, the cost of sleeping accommodations must be running in the thousands per day. I'm tablulating the droolers and head-jerkers, the ways people act awake when they are not, those who sleep with their eyes open, the ones who suddenly stare at you with incomprehending red eyes after you've goosed them to stop the roaring snore, the pitiful ones who slip to the floor and lie there like retired presidents, the guards whose heads loll as if gun-shot, the ones who jump up and dash for the exit to run head-long into the closed door still dreaming of a chasing tiger, the witnesses who cover their naps with could you repeat the quefshum, I don't know, I don't recall, not that I'm aware of, the counselors who hiccup object your honor without coming out of drone-narcosis. None of this applies to me. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 11:20:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24676 for dvd-discuss-outgoing; Fri, 21 Jul 2000 11:20:28 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA24670 for ; Fri, 21 Jul 2000 11:20:26 -0400 Received: by aero.org id <17095-2>; Fri, 21 Jul 2000 08:19:14 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdXTAa02167; Fri Jul 21 08:14:36 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 08:09:54 -0700 Subject: Re: [dvd-discuss] Effective To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 08:09:52 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 08:14:46 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu QED is one latin phrase I doubt they even bother to teach lawyers.... daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/20/2000 04:57:30 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Effective > No. I don't think he want to show that they failed to mitigate damage. If > he does that then he is admitting that his client has caused damage. Which brings me back to my reading of the transcript. It sounded to me like he was possibly preparing to argue that his client has not caused any harm, and that the MPAA knows it. (Proof (possibly what Garbus has in mind): If there really _was_ any risk of harm, the MPAA could have done something to mitigate the harm. They did nothing. Therefore even they didn't truly believe there was ever any risk of harm. QED.) From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 11:29:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24791 for dvd-discuss-outgoing; Fri, 21 Jul 2000 11:29:27 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA24788 for ; Fri, 21 Jul 2000 11:29:21 -0400 Received: by aero.org id <17108-2>; Fri, 21 Jul 2000 08:28:23 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdXWAa02167; Fri Jul 21 08:28:10 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 08:21:36 -0700 Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 08:21:35 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 08:28:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good Points.....Valenti keeps denying First Amendment issues and citing PIRACY but it's really first amendment. What I've got a nagging suspicion is that the MPAA would love to extend the DCMA to make it illegal for you to modify any hardware you buy. I could see them selling people DVD boxes "tied to the internet over your phone, where we can download the latest advertisements for movies for you aren't we wonderful to do all this for you" AND we monitor your box to see that it hasn't been tampered with or fixed and then we can notify the Police to arrest you for PIRACY all over the internet without even having to swear out a warrant. NO you are NOT authorized to fix your DVD box. it must be fixed by a LICENSED service person. It may be fate that "Emmanuel Goldstein" is the Defendant.....Big Brother CAN watch you over the internet. Seth David Schoen @eon.law.harvard.edu on 07/20/2000 05:08:41 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 John Schulien writes: > > [Kaplan] said, "... What I do might help prevent > > another horse from escaping but not DeCSS." > > ... which is completely wrong. Nothing he says or > does will prevent the next horse from escaping, > or aid its escape. He is, however, determining > whether escaped horses are outlaw horses, or > liberated horses. > > "Escaped horses" meaning "trade secrets > discovered through reverse engineering." > I think that the pre-1201 answer would be, > "liberated horses." > > I hope he doesn't think that his decision will > change the behavior of 16 year olds the > world over ... is he a parent? It's about making the horses afraid to leave, more than about locking them up -- litigators, remember, rather than alligators. You can train animals to stay within certain boundaries by setting up an electric fence and letting them experiment with it for a while -- even if you later turn off the electricity, the fear effect will keep them from crossing the line in time to come. Kaplan's decision sets a precedent (of various strengths in various places). If there is a clear precedent that decryption software can be banned under the DMCA and people punished for publishing it, lots and lots of people -- obviously not _everybody_ -- will be afraid and their speech chilled. Precedential value, and making an example of someone (like Emmanuel), isn't ever all-or-nothing in its effect on third parties' future behavior. Instead, it's always statistical. Those statistics may be important enough for the MPAA to spend vast amounts of money on influencing them. I'd speculate that underground security research which affects copyright interests somehow has already been chilled quite a bit from the fear inspired by this lawsuit. It's really hard to measure that, though -- are we supposed to wander around at Defcon asking people "Did _Universal v. Reimerdes_ scare you out of starting some project which you might otherwise have been interested in?" or post surveys on BUGTRAQ and cypherpunks? There is just no way to know. But I go to Linux user group meeting and people say they're scared, and that crowd is hardly the 'leet underground or anything. Never mind the waves of fear, trembling, and anger that percolate through the mass of black-clad teenagers and computer security journalists at 2600 meetings. Fear and statistics, fear and statistics. Judge Kaplan can at most make a martyr out of Emmanuel (increasing the number of mirror sites worldwide), and maybe try to restrict "persons in active concert or participation with him" (which would raise exactly the same issue as the Mattel case James Tyre mentions). But the "real" effect would be to make the public more fearful of crossing copyright holders with the technical information they publish. "Oderint," I see Jack Valenti saying, "dum metuant." -- 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 Jul 21 11:33:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25135 for dvd-discuss-outgoing; Fri, 21 Jul 2000 11:33:42 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA25132 for ; Fri, 21 Jul 2000 11:33:38 -0400 Received: by aero.org id <17107-5>; Fri, 21 Jul 2000 08:32:33 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdYABa02167; Fri Jul 21 08:32:17 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 08:30:42 -0700 Subject: Re: [dvd-discuss] Effective To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 08:30:39 AM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Fri, 21 Jul 2000 08:32:27 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id LAA25133 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "business objectives" is an abstraction. Judges don't like dealing with them. In contract law, in a breach of contract one is required to attempt to mitigate damages. Actually, the music broadcasts are not free. I believe the stations all have to pay fees to a consortium (RIAA or some such organization) that distributes the money to the recording companies. Business establishments cannot replay music broadcasts for this reason. From what a friend of mine tells me (he's involved in the Boston Area Folk scene), the artists don't get much money back from this either. Bryan Taylor @eon.law.harvard.edu on 07/20/2000 05:23:42 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Effective --- Michael.A.Rolenz@aero.org wrote: > > No. I don't think he want to show that they failed to mitigate > damage. If he does that then he is admitting that his client has > caused damage. I should say "impact to their business objectives" instead of "damage". I'm not speaking of legal damage. I'm also not saying that the MPAA's business objectives are the right ones, since they don't necessarily align with maximizing DVD sales. I happen to think that un-copyprotected products actually sell better. This got me thinking. A big difference between movies and Napster is that for music, radio stations exist and regularly take requests, which are broadcast for free. Thus most stuff is broadcast for free anyway, and peoples expectations about their ability to make free use are different. I don't think anybody would argue that a DivX file trader isn't commiting simple copyright infringement -- which is (still) a crime. If anybody tries to say this is OK by Betamax, I'm gonna hurl. Thus the Plaintiffs fears that they are going to be Napsterized misjudge the tolerance of the public and law for true movie piracy. They are still protected against this legally, even with DeCSS out there. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail ? Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 11:41:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA25704 for dvd-discuss-outgoing; Fri, 21 Jul 2000 11:41:40 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA25701 for ; Fri, 21 Jul 2000 11:41:39 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id LAA18877; Fri, 21 Jul 2000 11:41:45 -0400 Message-ID: <39786F39.6B8A5C26@mit.edu> Date: Fri, 21 Jul 2000 11:41:45 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Ms. Reider's testimony References: <3977C436.CE4A85A6@mit.edu> <200007211517.LAA08888@maynard.mail.mindspring.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 John Young wrote: > > Reider was articulate and memory-rich during direct > examination. Her artfully empty-tank mode appeared > with cross. > > This has been the pattern of many witnesses. Indeed, only > cross produces enough jolt to keep the audience alert, > when either side attempts to paint a portrait of pure > deviousness. Direct is usually just creampuff repeat for > the trial record of what is in affadavits and depositions. > > You can see who is supporting who in the courtroom by > who is snoozing and who is smiling at the testimony. That > applies to Judge Kaplan and the attorneys. Jeminy, the > cost of sleeping accommodations must be running in the > thousands per day. > And, just to confirm, Judge Kaplan's body language suggests he is on the plaintiff's side? I think you've said as much before, but I want to be sure nothing has changed. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:01:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27845 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:01:31 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27842 for ; Fri, 21 Jul 2000 12:01:25 -0400 Received: by aero.org id <17097-4>; Fri, 21 Jul 2000 09:00:22 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBHBa02167; Fri Jul 21 09:00:15 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 08:55:33 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 08:55:32 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 09:00:20 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu True. In copyright infringement, damages are based upon the how much money the infringer made. Since DVD sales are increasing. They'd be hard pressed to show that they LOST sales...although some creative accountants will probably discover how to numerically differentiate the numbers and show that they WOULD have made more money .... it all may be 1201. Sampo A Syreeni @eon.law.harvard.edu on 07/21/2000 05:30:59 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 On Thu, 20 Jul 2000 Michael.A.Rolenz@aero.org wrote: >What he may also be asking himself is "What will the MPAA get from 2600 if >they get their verdict?" - They haven't been able to prove ANY damages that >are compensable. (That's one thing Garbus is driving at with his "Can you >prove ANYBODY ANYWHERE AT ANYTIME DID IT?") So they aren't going to get >much money. In a similar vein, it's a funky thought overall that damages could be awarded based on 1201 - after all, all the possible damage comes from copyright infringement. Anything left over would be highly speculative. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:27:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA29868 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:27:18 -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 MAA29865 for ; Fri, 21 Jul 2000 12:27:17 -0400 Received: from ip28.bedford2.ma.pub-ip.psi.net ([38.32.10.28]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13Ffd6-0005Xn-00 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 12:26:29 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective Date: Fri, 21 Jul 2000 12:20:18 -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 MAA29866 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 21 Jul 2000 08:32:27 -0700, Michael.A.Rolenz@aero.org wrote: >Actually, the music broadcasts are not free. I believe the stations all >have to pay fees to a consortium (RIAA or some such organization) that >distributes the money to the recording companies. Business establishments >cannot replay music broadcasts for this reason. From what a friend of mine >tells me (he's involved in the Boston Area Folk scene), the artists don't >get much money back from this either. This is pretty good article-- Unknown Musicians Finding Payoffs Through the Internet Jukebox http://www.nytimes.com/library/tech/yr/mo/biztech/articles/20tune.html >Bryan Taylor @eon.law.harvard.edu on 07/20/2000 >I don't think anybody would argue that a DivX file trader isn't >commiting simple copyright infringement -- which is (still) a crime. If >anybody tries to say this is OK by Betamax, I'm gonna hurl. > >Thus the Plaintiffs fears that they are going to be Napsterized >misjudge the tolerance of the public and law for true movie piracy. >They are still protected against this legally, even with DeCSS out there. Because DivX and future compression schemes are likely to become the default for storing home video, and the industry itself will move to hi def, the situation in a year or two will be just as it is today: the consumer will be able build a limited home library of slightly better than VHS movies on CD. (Sales of CD-R media certainly isn't going to wane.) Of course this shifts more than time, which they still can't stand 16 years later. The industry should be so lucky to be Napsterized: they would sell more DVDs and players than they ever dreamed possible. Blockbuster wouldn't go out of business either. Scenes, trailers, clips and still frames will be more popular than entire movies that take six+ hours to dl on a broadband connection (that still isn't available to most citizens.) They are still protected by the law. I think what they want is a licensing scheme for your set-top box, so they can encrypt your email and monitor as well. Then the certificate authority that lets you decrypt everything can act as the cable company, revoking Internet service when your PPV bill is late. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:42:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30474 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:42:38 -0400 Received: from thoughtpolice.bigbrother.net (patchi.organic.com [208.241.222.3] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA30471 for ; Fri, 21 Jul 2000 12:42:37 -0400 Received: from bigbrother.net (IDENT:sterno@localhost [127.0.0.1]) by thoughtpolice.bigbrother.net (8.9.3/8.9.3) with ESMTP id LAA23346; Fri, 21 Jul 2000 11:33:18 -0500 Message-ID: <39787B49.63DF6FE7@bigbrother.net> Date: Fri, 21 Jul 2000 11:33:13 -0500 From: Steve Stearns X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.16 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective 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 > Actually, the music broadcasts are not free. I believe the stations all > have to pay fees to a consortium (RIAA or some such organization) that > distributes the money to the recording companies. Business establishments > cannot replay music broadcasts for this reason. From what a friend of mine > tells me (he's involved in the Boston Area Folk scene), the artists don't > get much money back from this either. Most of the music played on the radio is licensed by ASCAP to the radio stations. ASCAP does not cover all artists, but they cover the vast majority of them. When you play music, you are supposed to report what you play to ASCAP and then they will divy out the licensing fees to the various artists you played based on that information. ASCAP has also made a point of going after any business that plays music in their day to day business. MY father in law owned a gym where they had some music playing in the background. One day a representative from ASCAP came in and requested that they pay royalties to ASCAP or risk legal prosecution. Recently ASCAP has also made a point of coming after web radio stations, even small hobbyists which operate at no profit and have small audiences. You can pay them $264 a year to legally license their music assuming you don't make any money on it. If you make money on it it costs quite a bit more. ---Steve From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:43:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30541 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:43:43 -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 MAA30533 for ; Fri, 21 Jul 2000 12:43:41 -0400 Message-ID: <20000721164223.7776.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 21 Jul 2000 09:42:23 PDT Date: Fri, 21 Jul 2000 09:42:23 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Sampo A Syreeni wrote: > On Thu, 20 Jul 2000, Eric Eldred wrote: > > >Where did Shamos get the authority to decrypt "Sleepless > >in Seattle"? Who gave it to him and under what authority? > >Did the copyright holder do so, the MPAA (which doesn't > >own the copyright), the CSS owners, or who? > > Wait just a second. Wasn't there something in the > transcripts/depositions to suggest that the studios actually > cannot grant the right to decrypt with an unauthorized player > without breaching their contract with the DVD-CCA? This > would seem to be in direct contradiction with what Shamos did... 1201(a)(1) is not in effect yet, so any acts of access conrtol circumvention that Shamos did are not actionable. He did have verbal permission, at minimum, so he didn't commit copyright infringement either. This line of attach doesn't lead anywhere. Even if it did, the defense doesn't have standing to bring any causes of action. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:43:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA30540 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:43:43 -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 MAA30534 for ; Fri, 21 Jul 2000 12:43:41 -0400 Received: from jy01 (user-2inih27.dialup.mindspring.com [165.121.68.71]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id MAA16833 for ; Fri, 21 Jul 2000 12:42:52 -0400 (EDT) Message-Id: <200007211642.MAA16833@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 21 Jul 2000 12:36:44 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Ms. Reider's testimony In-Reply-To: <39786F39.6B8A5C26@mit.edu> References: <3977C436.CE4A85A6@mit.edu> <200007211517.LAA08888@maynard.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kaplan's body language is all over the place. when he responds to Garbus it is usually pit bull but sometimes complimentary and courteous. Garbus has a genius for seeming to be obsequious but deadly, never raises his voice to the judge, never gives ground, and the judge gets every nuance of it, responds with vigor, attacks at will. Great to watch and hear. I suspect preparing for their well-matched tussle is what keeps them more or less attentive if not awake (both intake the proceedings unconscious) . And they are the only two in command in court. Kaplan told Garbus to find a seat when he lolled at the backbar during Ed's address. Garbus moved slomo to do so. Garbus ranges over the pit in his delivery, others stand at the podium. Kaplan follows the target with six eyes, 12 senses, shotguns with demands for citations, Garbus mumbles a reply, Kaplan says speak up Mr. Garbus, Garbus raises his voice infinitismally, Kaplan booms I disagree, let's move on, to a subrosa taunt signal from Garbus beneath human radar. We've discovered where Kaplan has lunch, the Italian restaurant where I've falsely accused Declan of smarming, and have now shared the place three times with the judge, separated by say, 10 to 15 feet. Our table is a mangy crowd, profane, rude, cackling like devishes, his usually a quiet party of two -- the other gent looks judgish too. I'd like to invite them over but Robin says don't you fucking dare. Yesterday Kaplan was paying as we were leaving and he grinned, or grimaced, a voodoo pin. There's a pretty good chance we'll get him to lunch with Robin -- I mention the evil shiny black leather suit she wore yesterday? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:48:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA31452 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:48:31 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA31449 for ; Fri, 21 Jul 2000 12:48:15 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id JAA22844 for ; Fri, 21 Jul 2000 09:47:22 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma022217; Fri, 21 Jul 00 09:45:51 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id KAA01327; Fri, 21 Jul 2000 10:45:49 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 10:49:11 -0600 Message-ID: <001901bff333$98838120$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 From: daw@cs.berkeley.edu (David A. Wagner) Date: 20 Jul 2000 14:40:24 -0700 > Security goes right out the window if you build software players. > Period. This is especially true when a small number of fixed secret keys is involved. Imagine a "debugger" attack in the following way. Attach the debugger to a software player. Capture the state of every register every instruction (an processor simulator like "SoftWindows" could be used as well). At some point the key (or a portion of it) must appear in one of the registers. For reasons of implementation efficiency, it will not show up one bit at a time (even if that were the case one could step through a find sections of computations being ignored or masked off -- which might just reveal the key). More likely a byte or nibble at the smallest. Now run the player until the disk unlocks. The disk key can only be comprised of the few million numbers and nibbles that have occurred in the code snippet to unlock the drive. Do the same thing for the data stream. The ability to cull the possiblility space of an arbitarirly complex key to the set of numbers existing in the registers restricts the search space to less (and maybe a lot less) than 2^30, especially if one use some "propinquity" measure for likeliness of combination. This is easily searched even with a single computer in reasonable time. >From this it seems clear that cyrpto with universal "secret" keys is doomed (no matter the key size) if a software player is allowed. The key cannot be kept secret as it must be used. When it is used it is exposed. Cyrpto experts -- any problems with the attack? John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 12:58:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA32486 for dvd-discuss-outgoing; Fri, 21 Jul 2000 12:58:59 -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 MAA32482 for ; Fri, 21 Jul 2000 12:58:55 -0400 Message-ID: <20000721165737.1450.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Fri, 21 Jul 2000 09:57:37 PDT Date: Fri, 21 Jul 2000 09:57:37 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Effective To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Ron Gustavson wrote: > The industry should be so lucky to be Napsterized: they would sell > more DVDs and players than they ever dreamed possible. Here's a CNET anticle about a study that shows that Napster users spend more on CD's than others: http://news.cnet.com/news/0-1005-200-2306997.html?tag=st.ne.1002.thed.ni I think Johansen said he owned 40 DVD's. That sounds like a hell of a lot to me. I wonder how many the typical DVD owner has. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 13:07:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA00855 for dvd-discuss-outgoing; Fri, 21 Jul 2000 13:07:54 -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 NAA00852 for ; Fri, 21 Jul 2000 13:07:53 -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 NAA07276; Fri, 21 Jul 2000 13:06:21 -0400 Message-Id: <200007211706.NAA07276@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Transcript, day 4 In-reply-to: Your message of "Fri, 21 Jul 2000 07:30:05 EDT." <200007211130.HAA24162@soggy-fibers.ai.mit.edu> Date: Fri, 21 Jul 2000 13:05:51 -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: : Sham Gardner writes: : > I presume the following is a transcription error, but can't piece together : > what was meant, can someone who wa there she some light: : > : > Page 760 : > 14 A. That's a hard question. I would say they are abstract in : > 15 different ways. There are certainly some things which you can : > 16 learn more fruit any from source code. : > ^^^^^^^^^ : : "from any" makes sense there. Looks to me like a typo in phonetic : transcription. My guess is that the transcription error noted here should be corrected to ``learn more _from it than from_ any source code.'' -- 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 Jul 21 13:21:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA01926 for dvd-discuss-outgoing; Fri, 21 Jul 2000 13:21:59 -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 NAA01908 for ; Fri, 21 Jul 2000 13:21:48 -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 NAA07372; Fri, 21 Jul 2000 13:20:16 -0400 Message-Id: <200007211720.NAA07372@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" Subject: Re: [dvd-discuss] Transcript, day 4 In-reply-to: Your message of "Fri, 21 Jul 2000 08:44:23 EDT." <397845A7.C12251F7@cs.princeton.edu> Date: Fri, 21 Jul 2000 13:19:46 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Edward W. Felten" writes: : Sham Gardner wrote: : > : > I presume the following is a transcription error, but can't piece together : > what was meant, can someone who wa there she some light: : > : > Page 760 : > 14 A. That's a hard question. I would say they are abstract in : > 15 different ways. There are certainly some things which you can : > 16 learn more fruit any from source code. : > ^^^^^^^^^ : > : : I can clear this up, since I'm the one who said it. It should say : "fruitfully" rather than "fruit any". Oops. I didn't see this. Please strike my earlier guess. (I should have looked at the larger context or kept my mouth shut.) May I say that your discussion of the (non-)distinction between source and object code is probably the clearest and most useful discussion that I have seen of that subject. The supposed distinction will quite likely become an issue when we go to trial to resolve the remaining issues in Junger v. Daley. Thanks, Peter -- 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 Jul 21 13:27:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA02418 for dvd-discuss-outgoing; Fri, 21 Jul 2000 13:27:34 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA02415 for ; Fri, 21 Jul 2000 13:27:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA08387 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 13:28:56 -0400 Date: Fri, 21 Jul 2000 13:28:51 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000721132851.B8325@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Fri, Jul 21, 2000 at 03:29:41PM +0300 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 03:29:41PM +0300, Sampo A Syreeni wrote: > > ... it's a funky thought overall that damages could be > awarded based on 1201 - after all, all the possible damage comes from > copyright infringement. Anything left over would be highly speculative. It seems rather odd to me that the MPAA is relying so much on DMCA to carry them. If the question is what role does DeCSS have in copyright infringement, they have already stipulated they can find no actual case, and in fact are not seeking damages at all. What they say they want now is a ruling that DeCSS is illegal under DMCA, period. But they could have started out with an argument that DeCSS itself violated their intellectual property rights, for example trade secrets. Even if they have not copyrighted or trademarked CSS, the DVDCCA could and has claimed that DeCSS is a "circumvention" in itself, and because this control mechanism was a trade secret and that revealing this trade secret would violate the DMCA, publishing DeCSS violates the rights of DVDCCA and MPAA. But I don't think they would get an injunction in that case in federal court. There is too distant a path to copyright infringement. But maybe that's what they were thinking when they started and are a bit desperate now. Of course, if Kaplan rules broadly, then maybe this point will be included. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 13:53:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA05498 for dvd-discuss-outgoing; Fri, 21 Jul 2000 13:53:33 -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 NAA05495 for ; Fri, 21 Jul 2000 13:53:31 -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:2.21) with ESMTP id NAA09517 for ; Fri, 21 Jul 2000 13:52:44 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA26066; Fri, 21 Jul 2000 13:52:43 -0400 (EDT) Date: Fri, 21 Jul 2000 13:52:43 -0400 (EDT) Message-Id: <200007211752.NAA26066@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <20000721132851.B8325@eldritchpress.org> References: <20000721132851.B8325@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > But they could have started out with an argument that DeCSS > itself violated their intellectual property rights, for > example trade secrets. Even if they have not copyrighted > or trademarked CSS, the DVDCCA could and has claimed that > DeCSS is a "circumvention" in itself, and because this > control mechanism was a trade secret and that revealing this > trade secret would violate the DMCA, publishing DeCSS > violates the rights of DVDCCA and MPAA. Well, trade secrets last only until someone does the reverse engineering, which is not long at all when software implements the secret handshake. Patents expire. And so forth. On the other hand, if they can convince Kaplan that CSS is an effective access control, and a license from the DVDCCA is the appropriate "authority of the copyright owner", then they've won a patent-like control over the CSS process which never expires --- and they can tie arbitrary restrictions on the players (region coding, ad display, who knows what else) to the conditions of the license. Which is, in the long run, worth a great deal more to them than simply squelching this one unsquelchable piece of code. (NB this is a somewhat odd authority theory --- we've been through the problems of how a license for you to decrypt your DVDs on your Panasonic DVD player can be conferred by a contract between the DVDCCA and Panasonic to which you are not a party. But the MPAA has made it pretty clear, in court and out of it, that this is their theory). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 14:01:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA05706 for dvd-discuss-outgoing; Fri, 21 Jul 2000 14:01:00 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA05703 for ; Fri, 21 Jul 2000 14:00:48 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13Fh55-0001Pv-00; Fri, 21 Jul 2000 10:59:27 -0700 Date: Fri, 21 Jul 2000 10:59:27 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000721105927.T594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000721132851.B8325@eldritchpress.org> <200007211752.NAA26066@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <200007211752.NAA26066@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 21, 2000 at 01:52:43PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau writes: > (NB this is a somewhat odd authority theory --- we've been through the > problems of how a license for you to decrypt your DVDs on your > Panasonic DVD player can be conferred by a contract between the DVDCCA > and Panasonic to which you are not a party. But the MPAA has made it > pretty clear, in court and out of it, that this is their theory). Privity, there's no privity! You learn great words from this stuff. I hope the defense goes after this. The important subtext is that not all technology that Reasonable People use comes from a box at Best Buy, Circuit City, or Target. Some Reasonable People make technology themselves, some make it on the Internet in active concert or participation with other Reasonable People. -- 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 Jul 21 14:52:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA10634 for dvd-discuss-outgoing; Fri, 21 Jul 2000 14:52:36 -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 OAA10631 for ; Fri, 21 Jul 2000 14:52:35 -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:2.21) with ESMTP id OAA16203 for ; Fri, 21 Jul 2000 14:51:49 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA26492; Fri, 21 Jul 2000 14:51:47 -0400 (EDT) Date: Fri, 21 Jul 2000 14:51:47 -0400 (EDT) Message-Id: <200007211851.OAA26492@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <20000721105927.T594@zork.net> References: <20000721132851.B8325@eldritchpress.org> <200007211752.NAA26066@soggy-fibers.ai.mit.edu> <20000721105927.T594@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: > > > (NB this is a somewhat odd authority theory --- we've been through the > > problems of how a license for you to decrypt your DVDs on your > > Panasonic DVD player can be conferred by a contract between the DVDCCA > > and Panasonic to which you are not a party. But the MPAA has made it > > pretty clear, in court and out of it, that this is their theory). > > Privity, there's no privity! You learn great words from this stuff. > I hope the defense goes after this. The important subtext is that not > all technology that Reasonable People use comes from a box at Best > Buy, Circuit City, or Target. And there's also the little problem that the defendants will have coaxed an indefinite patent-like monopoly out of the law, but the Constitution doesn't allow Congress to grant those. (They're empowered "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"; in this case, the upshot, according to the plaintiffs, is that Congress has granted them exclusive rights to an invention --- an access control process --- for an unlimited time, and to authors, not inventors). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 14:56:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA11137 for dvd-discuss-outgoing; Fri, 21 Jul 2000 14:56:37 -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 OAA11134 for ; Fri, 21 Jul 2000 14:56:35 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13FhxV-000547-00; Fri, 21 Jul 2000 20:55:41 +0200 Received: from localhost by sites.inka.de with local id 13FhxV-0001Wc-00; Fri, 21 Jul 2000 20:55:41 +0200 Date: Fri, 21 Jul 2000 20:55:41 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000721205541.B5359@inka.de> References: <20000721132851.B8325@eldritchpress.org> <200007211752.NAA26066@soggy-fibers.ai.mit.edu> <20000721105927.T594@zork.net> <200007211851.OAA26492@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007211851.OAA26492@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 21, 2000 at 02:51:47PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 02:51:47PM -0400, Robert S. Thau wrote: > And there's also the little problem that the defendants will have > coaxed an indefinite patent-like monopoly out of the law, I hope you mean the plaintiffs. ;) Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 15:07:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11546 for dvd-discuss-outgoing; Fri, 21 Jul 2000 15:07:12 -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 PAA11543 for ; Fri, 21 Jul 2000 15:07:11 -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:2.21) with ESMTP id PAA18052 for ; Fri, 21 Jul 2000 15:06:24 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA26605; Fri, 21 Jul 2000 15:06:23 -0400 (EDT) Date: Fri, 21 Jul 2000 15:06:23 -0400 (EDT) Message-Id: <200007211906.PAA26605@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <20000721205541.B5359@inka.de> References: <20000721132851.B8325@eldritchpress.org> <200007211752.NAA26066@soggy-fibers.ai.mit.edu> <20000721105927.T594@zork.net> <200007211851.OAA26492@soggy-fibers.ai.mit.edu> <20000721205541.B5359@inka.de> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sham Gardner writes: > On Fri, Jul 21, 2000 at 02:51:47PM -0400, Robert S. Thau wrote: > > And there's also the little problem that the defendants will have > > coaxed an indefinite patent-like monopoly out of the law, > > I hope you mean the plaintiffs. ;) So do I. Ouch. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 15:13:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11710 for dvd-discuss-outgoing; Fri, 21 Jul 2000 15:13:13 -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 PAA11707 for ; Fri, 21 Jul 2000 15:13:09 -0400 Message-ID: <20000721191151.6347.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 21 Jul 2000 12:11:51 PDT Date: Fri, 21 Jul 2000 12:11:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Transcript, day 4 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: > May I say that your discussion of the (non-)distinction between > source and object code is probably the clearest and most useful > discussion that I have seen of that subject. The > supposed distinction will quite likely become an issue when we go > to trial to resolve the remaining issues in Junger v. Daley. I agree, Prof. Felten's testimony was great for this purpose. I'm still baffled as to why this isn't considered settled law. After all, there are myriads of cases saying that computer programs in executable form are 'literary works', under the copyright definition. Copyright only protects expression of original authorship. Since computer programs are copyrighted, they are original expression. What's left to show? If a grooved piece of plastic, known as a record that produces output from an audio device is protected expression, why wouldn't a computer program be protected expression? A computer, at the end of the day, produces or modifies audio/visual output that is eventually presented to human beings to stimulate their minds. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 15:24:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA11909 for dvd-discuss-outgoing; Fri, 21 Jul 2000 15:24:11 -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 PAA11906 for ; Fri, 21 Jul 2000 15:24:11 -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:2.21) with ESMTP id PAA20365 for ; Fri, 21 Jul 2000 15:23:24 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA26725; Fri, 21 Jul 2000 15:23:23 -0400 (EDT) Date: Fri, 21 Jul 2000 15:23:23 -0400 (EDT) Message-Id: <200007211923.PAA26725@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial closing briefs? Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A possibly idle question: going by yesterday's transcript, it seems that the trial itself probably won't last past next week. If we'd like to submit a post-trial brief, when would be the right time to do that? Is it too early to think about what would go in? rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 15:31:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA12149 for dvd-discuss-outgoing; Fri, 21 Jul 2000 15:31:54 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA12146 for ; Fri, 21 Jul 2000 15:31:52 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FiVb-0001j1-00; Fri, 21 Jul 2000 12:30:55 -0700 Date: Fri, 21 Jul 2000 12:30:55 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721123055.X594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <001901bff333$98838120$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <001901bff333$98838120$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Fri, Jul 21, 2000 at 10:49:11AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf writes: > This is especially true when a small number of fixed secret keys is > involved. Imagine a "debugger" attack in the following way. Attach the > debugger to a software player. Capture the state of every register every > instruction (an processor simulator like "SoftWindows" could be used as > well). At some point the key (or a portion of it) must appear in one of the > registers. For reasons of implementation efficiency, it will not show up > one bit at a time (even if that were the case one could step through a find > sections of computations being ignored or masked off -- which might just > reveal the key). More likely a byte or nibble at the smallest. Now run the > player until the disk unlocks. The disk key can only be comprised of the > few million numbers and nibbles that have occurred in the code snippet to > unlock the drive. Do the same thing for the data stream. The ability to > cull the possiblility space of an arbitarirly complex key to the set of > numbers existing in the registers restricts the search space to less (and > maybe a lot less) than 2^30, especially if one use some "propinquity" > measure for likeliness of combination. This is easily searched even with a > single computer in reasonable time. > > [...] > > Cyrpto experts -- any problems with the attack? I'm not a crypto expert, but I can think of a way to make a program resistent to this attack. Every operation which uses the key should be decomposable into a set of two or more equivalent operations which don't ever use the key in its original preferred form. As an example, instead of doing XOR by 10415, you could do XOR by 8537 followed by XOR by 2550. Then the number 10415 never appears in a register, or even in memory. In fact, no particular "identifiable" part of 10415 appears in memory, unless you have some way of predicting one of the other numbers. In general, there are lots of secret-sharing schemes, and programs could use them internally to avoid storing or representing a number internally "all in one place" in the form in which a particular attack expects it. Software players are still inherently insecure, but any particular algorithm can be modified to resist your automated attack. -- 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 Jul 21 15:38:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA12294 for dvd-discuss-outgoing; Fri, 21 Jul 2000 15:38:15 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA12290 for ; Fri, 21 Jul 2000 15:38:13 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id OAA04385 for ; Fri, 21 Jul 2000 14:40:18 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Fri, 21 Jul 2000 15:37:25 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C2B@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 15:37:24 -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 No problems, it would work and your assertion is correct. I am a software / hardware expert with conceptual knowledge of cryptography. -----Original Message----- From: John Zulauf [mailto:john.zulauf@ia.nsc.com] . . . >From this it seems clear that cyrpto with universal "secret" keys is doomed (no matter the key size) if a software player is allowed. The key cannot be kept secret as it must be used. When it is used it is exposed. Cyrpto experts -- any problems with the attack? . From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 16:11:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA12850 for dvd-discuss-outgoing; Fri, 21 Jul 2000 16:11:32 -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 QAA12846 for ; Fri, 21 Jul 2000 16:11:29 -0400 Message-ID: <20000721201011.7579.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Fri, 21 Jul 2000 13:10:11 PDT Date: Fri, 21 Jul 2000 13:10:11 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Antitrust is THE issue of 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 Suppose that you accept that each studio, as a copyright owner, can authorize or preclude distribution of any tool capable of removing CSS for playback purposes. Does this give the studios the right to select the same organization as a single source supplier of this licence? Wouldn't that violate antitrust laws for collusion? In essence there is a tying of the DVD copyright to a single source licence from DVD-CCA, a product which costs $10,000 from the testimony. If you want to create a player, the collective "market power" of all studios "forces" the DVD-CCA's product on you. You have no alternative. With this forcing comes terms within the licence that you adopt anti-competitive positions when you market your player. You can either believe that Congress intended to allow tying of the sale of copies of a copyrighted work to a separate sale of access rights, or you can believe that Congress intended to preserve "First Sale" by allowing only one of these to occur. The two models are mutally exclusive: Congress either allows only "First Sale", or they created a legal framework for "Second Sale". The "Second Sale" model would create a conflict with antitrust laws. It would seem to contradict the legislators who spoke out that the DMCA did not create a "pay-per-use" society. It also raises constitutional questions by granting a form of IP that has no time limit, protects ideas & concepts from fair use, requires no public disclosure, and stiffles public discourse on it's inner workings. The "no Second Sale" model is consistent with the legislative history of the DMCA. It creates no conflict of law with antitrust. It fewer constitutional questions and avoids some altogether. The second is clearly the correct interpretation. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 16:17:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13156 for dvd-discuss-outgoing; Fri, 21 Jul 2000 16:17:06 -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 QAA13153 for ; Fri, 21 Jul 2000 16:17:05 -0400 Received: from jy01 (user-2inih27.dialup.mindspring.com [165.121.68.71]) by maynard.mail.mindspring.net (8.9.3/8.8.5) with SMTP id QAA07772 for ; Fri, 21 Jul 2000 16:16:16 -0400 (EDT) Message-Id: <200007212016.QAA07772@maynard.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 21 Jul 2000 16:11:07 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Transcript, day 4 In-Reply-To: <200007211720.NAA07372@samsara.law.cwru.edu> References: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Peter Junger wrote: >May I say that your discussion of the (non-)distinction between source >and object code is probably the clearest and most useful discussion that >I have seen of that subject. The supposed distinction will quite >likely become an issue when we go to trial to resolve the remaining >issues in Junger v. Daley. Yes, Ed's commentary was highly informative, and deserves wide reading amongst the judiciary and the attorneys handling crypto cases, say, Bernstein. Is the Phil Karn's case active? What did you think of Judge Kaplan's disquisition on source and object code? Note that he interrupted the proceedings to deliver this to Ed for evaluation. Which could mean that he is hoping to anticipate an outcome in Junger v. Daley, and to surpass it, or at least head off 2600's use of it, as he has earlier done. Bruce Schneier's and David Wagner's testimony should be similarly precedent setting. What other cryptographers are scheduled? Bernstein? Peter, are you to be a witness? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 16:22:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA13466 for dvd-discuss-outgoing; Fri, 21 Jul 2000 16:22:33 -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 QAA13463 for ; Fri, 21 Jul 2000 16:22:32 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13FjIm-0007vD-00; Fri, 21 Jul 2000 22:21:44 +0200 Received: from localhost by sites.inka.de with local id 13FjIo-00023c-00; Fri, 21 Jul 2000 22:21:46 +0200 Date: Fri, 21 Jul 2000 22:21:46 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Witness schedule Message-ID: <20000721222145.D5359@inka.de> References: <200007211720.NAA07372@samsara.law.cwru.edu> <200007212016.QAA07772@maynard.mail.mindspring.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007212016.QAA07772@maynard.mail.mindspring.net>; from jya@pipeline.com on Fri, Jul 21, 2000 at 04:11:07PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Towards the end of yesterday's transcript there was a discussion about scheduling of defence witnesses. Some of them apparently couldn't make it to the courtroom today. Kaplan seemed reluctant to grant any sort of extension to accomodate them. Does anyone know how this was resolved? Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 16:50:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA14339 for dvd-discuss-outgoing; Fri, 21 Jul 2000 16:50:16 -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 QAA14336 for ; Fri, 21 Jul 2000 16:50:14 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4C5>; Fri, 21 Jul 2000 13:49:39 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D2B@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 13:49:34 -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] ... > > And that's why I don't see the relevance of the testimony regarding > > the fundamental weaknesses in CSS. Because even if they'd done > > it right, the algorithms and keys could still be found by > > reverse-engineering, and we'd all still be here. > > Frank Stevensen has published an attack that does not require > any prior > knowledge of keys. He was able to do this because the algorithm is > weak. His algorithm would work even if there was a method for keeping > the keys secret. If the algorithm is weak, the keys become > irrelevent. > I think that is going the wrong direction. The real point is, that even if CSS had been the strongest encryption possible, the KEYS WERE DISTRIBUTED ALONG WITH THE ENCRYPTED MATERIAL. A lock with the key welded into it is no lock. -- -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 Jul 21 17:01:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14518 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:01:19 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14514 for ; Fri, 21 Jul 2000 17:01:17 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FjuE-0001z0-00; Fri, 21 Jul 2000 14:00:26 -0700 Date: Fri, 21 Jul 2000 14:00:26 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721140026.A594@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <5A8391CA2D9ED311AFAA080009D982B10B1D2B@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D2B@mail2.onetouch.com>; from hartman@onetouch.com on Fri, Jul 21, 2000 at 01:49:34PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman writes: > I think that is going the wrong direction. The real point > is, that even if CSS had been the strongest encryption possible, > the KEYS WERE DISTRIBUTED ALONG WITH THE ENCRYPTED MATERIAL. > > A lock with the key welded into it is no lock. There are several different kinds of keys. You still need a player key. Not only the algorithm, but also the player keys, are "secret", except, strangely, both are to be found in widely-distributed software players. The Computer Science Undergraduate Association at Berkeley (in the same building as David Wagner's office) has the following access control for their office: - The key to the office door is kept in a box right outside the office. - That box is locked with a combination lock. - Only officers of the CSUA are supposed to know the combination. Now, CSUA office security would be like CSS if the lock combination were a single digit, or if the CSUA published a binary which would print out the lock combination if the user running it belonged to group "politburo". MIT Athena lab security is actually vaguely like that, but I don't think Athena is suing people for cirucmventing their access controls. :-) -- 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 Jul 21 17:04:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14690 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:04:20 -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 RAA14687 for ; Fri, 21 Jul 2000 17:04:17 -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 RAA08109; Fri, 21 Jul 2000 17:02:45 -0400 Message-Id: <200007212102.RAA08109@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" Subject: Re: [dvd-discuss] Transcript, day 4 In-reply-to: Your message of "Fri, 21 Jul 2000 16:11:07 EDT." <200007212016.QAA07772@maynard.mail.mindspring.net> Date: Fri, 21 Jul 2000 17:02:15 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Young writes: : Peter Junger wrote: : : >May I say that your discussion of the (non-)distinction between source : >and object code is probably the clearest and most useful discussion that : >I have seen of that subject. The supposed distinction will quite : >likely become an issue when we go to trial to resolve the remaining : >issues in Junger v. Daley. : : Yes, Ed's commentary was highly informative, and deserves wide : reading amongst the judiciary and the attorneys handling crypto : cases, say, Bernstein. Is the Phil Karn's case active? (I understand that the Karn case has been settled in part at least because of the new much less restrictive regulations that will let Phil Karn publish the materials that he wanted to publish. The Karn case contibuted a lot to that result.) : What did you think of Judge Kaplan's disquisition on source and : object code? Note that he interrupted the proceedings to deliver : this to Ed for evaluation. It was very good for a judge's---or any lawyer's---definition, but it rather missed the point that there is no firm distinction between source and object code. The problem with us lawyers is that we try to find a definition that fits some imprecise concept, and then cheerfully apply the definition in places where the concept no longer fits. One of the good things in Judge Gwin's decision in Junger v. Daley was that he did not get hung up on the source code / object code distinction. So when he decided that code was part of a machine in a way that took it outside the First Amendment's protection, he applied that conclusion specifically to source code, because he was rejecting the holding by Judge Patel in Bernstein that source code is protected. When the 6th Circuit reversed, they referred to source code because that is what Judge Gwin (like Judge Patel) had been discussing. The logic of their holding applies, however, equally well to so-called object code. And that is what Ed Felton explained so beautifully. : Which could mean that he is hoping to anticipate an outcome in : Junger v. Daley, and to surpass it, or at least head off 2600's use : of it, as he has earlier done. I wouldn't speculate about that. I think he was just anticipating that he would have to say something on the matter and wanted to make sure that he had a working definition. : Bruce Schneier's and David Wagner's testimony should be : similarly precedent setting. What other cryptographers are : scheduled? Bernstein? Peter, are you to be a witness? I am not sure who is scheduled. I haven't heard anything about Bernstein in the context of the 2600 case, so I doubt if he is. I assure you that I am neither a cryptographer nor a witness. The closest I have come to the 2600 case is to have submitted a comment and a reply comment to the Copyright Office in connection with their request for comments on the exemption provisions of Section 1201(a)(1). I am working on a piece setting forth my conclusion that neither 1201(a)(1) nor 1201(a)(2) apply to situations like DVD's where the alleged circumventor has a copy of the copyrighted work. That it was intended to apply in cases like scrambled TV signals where the circumventor has no copy to get access to initially, and perhaps to cases where the copyright owner retains title to the copy and only leases it to the would-be circumventor, but not to DVDs and books and phonograph records which the circumventor owns. Unfortunately, that piece is not going as rapidly as the trial and the good parts remain to be written. -- 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 Jul 21 17:12:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14899 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:12:02 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14896 for ; Fri, 21 Jul 2000 17:12:01 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id QAA07569 for ; Fri, 21 Jul 2000 16:14:06 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Fri, 21 Jul 2000 17:11:14 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C32@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 17:11:13 -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 No way, MIT Athena lab security is nothing as weak as the CSUA mechanism described. It is strong and robust and not insecure in the slightest. Perhaps, what led you to assume it was like the CSUA mechanism was the fact that MIT has actually found a way to "propagate authentications" securely. I. e. for accessing several different systems, one has to authenticate oneself to just one system, and from then on by a complex ticket granting and authentication process it allows the user to access other services. But the initial authentication is very strong (unlike the combination lock described) and the propagation is foolproof. The following article on their mechanism, named kerberos, is an excellent and captivating description of their scheme. It is perfectly suitable for lay-persons too (it's written as a four-act play!!). A good read: http://web.mit.edu/kerberos/www/dialogue.html Anjul. -----Original Message----- From: Seth David Schoen [mailto:schoen@loyalty.org] Richard Hartman writes: > I think that is going the wrong direction. The real point > is, that even if CSS had been the strongest encryption possible, > the KEYS WERE DISTRIBUTED ALONG WITH THE ENCRYPTED MATERIAL. > > A lock with the key welded into it is no lock. There are several different kinds of keys. You still need a player . . . Now, CSUA office security would be like CSS if the lock combination were a single digit, or if the CSUA published a binary which would print out the lock combination if the user running it belonged to group "politburo". MIT Athena lab security is actually vaguely like that, but I don't think Athena is suing people for cirucmventing their access controls. :-) From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:16:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14993 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:16:35 -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 RAA14990 for ; Fri, 21 Jul 2000 17:16:33 -0400 Message-ID: <20000721211516.22884.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 21 Jul 2000 14:15:16 PDT Date: Fri, 21 Jul 2000 14:15:16 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] Here's a good site for info. 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: > If the algorithm is weak, the keys become irrelevent. > > I think that is going the wrong direction. The real point > is, that even if CSS had been the strongest encryption possible, > the KEYS WERE DISTRIBUTED ALONG WITH THE ENCRYPTED MATERIAL. > > A lock with the key welded into it is no lock. I think both are true. In addition to having the combination to the lock written on the bottom of the safe, you can also get in without knowing or using the combo because there are no screws in the hinges of the door. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:19:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15074 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:19:20 -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 RAA15071 for ; Fri, 21 Jul 2000 17:19:19 -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:2.21) with ESMTP id RAA03679 for ; Fri, 21 Jul 2000 17:18:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA27434; Fri, 21 Jul 2000 17:18:31 -0400 (EDT) Date: Fri, 21 Jul 2000 17:18:31 -0400 (EDT) Message-Id: <200007212118.RAA27434@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Here's a good site for info. In-Reply-To: <383558CE36E2D311AC790004AC33FF67616C32@OZ> References: <383558CE36E2D311AC790004AC33FF67616C32@OZ> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Anjul Srivastava writes: > No way, MIT Athena lab security is nothing as weak as the CSUA mechanism > described. It is strong and robust and not insecure in the slightest. Anjul, I believe Seth was referring to the combination-lock "security" on the doors of Athena labs, not to the kerberos security mechanism implemented by the computers inside. The door combination is every bit as insecure as Seth described; obtaining the combination on a printed piece of paper is an easy exercise for anyone with a few minutes to spare on campus. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:21:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15151 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:21:25 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15148 for ; Fri, 21 Jul 2000 17:21:24 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FkDl-00022z-00; Fri, 21 Jul 2000 14:20:37 -0700 Date: Fri, 21 Jul 2000 14:20:37 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721142037.B594@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <383558CE36E2D311AC790004AC33FF67616C32@OZ> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <383558CE36E2D311AC790004AC33FF67616C32@OZ>; from anjul.srivastava@sanchez.com on Fri, Jul 21, 2000 at 05:11:13PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Anjul Srivastava writes: > No way, MIT Athena lab security is nothing as weak as the CSUA mechanism > described. It is strong and robust and not insecure in the slightest. > > Perhaps, what led you to assume it was like the CSUA mechanism was the fact > that MIT has actually found a way to "propagate authentications" securely. > I. e. for accessing several different systems, one has to authenticate > oneself to just one system, and from then on by a complex ticket granting > and authentication process it allows the user to access other services. > > But the initial authentication is very strong (unlike the combination lock > described) and the propagation is foolproof. > > The following article on their mechanism, named kerberos, is an excellent > and captivating description of their scheme. > > It is perfectly suitable for lay-persons too (it's written as a four-act > play!!). A good read: > > http://web.mit.edu/kerberos/www/dialogue.html No, no, no, I'm not talking about Kerberos, I'm talking about physical access to the labs. -- 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 Jul 21 17:21:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15159 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:21:35 -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 RAA15156 for ; Fri, 21 Jul 2000 17:21:34 -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:2.21) with ESMTP id RAA03894 for ; Fri, 21 Jul 2000 17:20:47 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id RAA27450; Fri, 21 Jul 2000 17:20:46 -0400 (EDT) Date: Fri, 21 Jul 2000 17:20:46 -0400 (EDT) Message-Id: <200007212120.RAA27450@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Here's a good site for info. In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D2B@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D2B@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 lock with the key welded into it is no lock. For those who like metaphors --- if anyone can walk up, turn the key, and gain access, then it's *not* a key; it's a fancy doorknob. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:23:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15267 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:23:07 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15255 for ; Fri, 21 Jul 2000 17:23:06 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id QAA07793 for ; Fri, 21 Jul 2000 16:25:11 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Fri, 21 Jul 2000 17:22:19 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C37@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 17:22:18 -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 Interesting :-) I have a story to tell whenever somebody from MIT boasts about kerberos next ;-) From: Robert S. Thau [mailto:rst@ai.mit.edu] Anjul Srivastava writes: > No way, MIT Athena lab security is nothing as weak as the CSUA mechanism > described. It is strong and robust and not insecure in the slightest. Anjul, I believe Seth was referring to the combination-lock "security" on the doors of Athena labs, not to the kerberos security mechanism implemented by the computers inside. The door combination is every bit as insecure as Seth described; obtaining the combination on a printed piece of paper is an easy exercise for anyone with a few minutes to spare on campus. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:34:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15420 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:34:13 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15417 for ; Fri, 21 Jul 2000 17:34:11 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FkQ9-00025t-00; Fri, 21 Jul 2000 14:33:25 -0700 Date: Fri, 21 Jul 2000 14:33:25 -0700 From: Seth David Schoen To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721143325.C594@zork.net> Mail-Followup-To: "'dvd-discuss@eon.law.harvard.edu'" References: <383558CE36E2D311AC790004AC33FF67616C37@OZ> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <383558CE36E2D311AC790004AC33FF67616C37@OZ>; from anjul.srivastava@sanchez.com on Fri, Jul 21, 2000 at 05:22:18PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Anjul Srivastava writes: > Interesting :-) I have a story to tell whenever somebody from MIT boasts > about kerberos next ;-) So, there is always a question of threat models. For instance, those nice Athena workstations have keyboards, so somebody can come along with a KeyGhost and capture everybody's passwords for a week, even though all of the Athena users are security-conscious and responsible and use Kerberos 5 and SSH all the time. In that sense, physical access to the clusters might be _more_ important than Kerberos, at least now that KeyGhosts are available. Some people suggested that the answer to this is banning KeyGhosts. How very 1201ish an approach to security! Oh, so, getting back to CSS, the point is not that "all security systems will eventually be broken" (as both the MPAA witnesses and Emmanuel Goldstein seem to agree!) but that CSS is woefully inadequate against a capable adversary. And the application of CSS is inherently flawed, because the science of cryptography isn't capable of doing what the plaintiffs and their agents wanted it to (as Paul Fenimore has pointed out here a couple of times). -- 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 Jul 21 17:35:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15559 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:35:57 -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 RAA15556 for ; Fri, 21 Jul 2000 17:35:56 -0400 Message-ID: <20000721213436.25110.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 21 Jul 2000 14:34:36 PDT Date: Fri, 21 Jul 2000 14:34:36 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Trial closing briefs? To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > A possibly idle question: going by yesterday's transcript, it seems > that the trial itself probably won't last past next week. If we'd > like to submit a post-trial brief, when would be the right time to do > that? Is it too early to think about what would go in? I would say that our themes should be 1. Circumvention, Competing authorization models & Antitrust 2. Reverse Engineering 3. First Amendment & Fair use 4. No Harm I would also recommend that we try to enumerate our own findings of fact. This may or may not be a good thing to give to the judge, but it will probably help us gather our thoughts. Actually, this could go into an FAQ or something. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:40:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15634 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:40:49 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15631 for ; Fri, 21 Jul 2000 17:40:45 -0400 Received: by aero.org id <17130-3>; Fri, 21 Jul 2000 14:39:48 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdHPAa03090; Fri Jul 21 14:39:22 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 14:01:45 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 02:01:43 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 14:39:29 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One interesting point here is that when a patent expires - everybody can use it. When a trade secret gets known, everybody can use it. Now presumably under DCMA, they don't have to tell ANYBODY what it is and if anybody figures it out, they can take them to court. DVDs can be locked up by them in perpetuity. "Robert S. Thau" @eon.law.harvard.edu on 07/21/2000 10:54:19 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Eric Eldred writes: > But they could have started out with an argument that DeCSS > itself violated their intellectual property rights, for > example trade secrets. Even if they have not copyrighted > or trademarked CSS, the DVDCCA could and has claimed that > DeCSS is a "circumvention" in itself, and because this > control mechanism was a trade secret and that revealing this > trade secret would violate the DMCA, publishing DeCSS > violates the rights of DVDCCA and MPAA. Well, trade secrets last only until someone does the reverse engineering, which is not long at all when software implements the secret handshake. Patents expire. And so forth. On the other hand, if they can convince Kaplan that CSS is an effective access control, and a license from the DVDCCA is the appropriate "authority of the copyright owner", then they've won a patent-like control over the CSS process which never expires --- and they can tie arbitrary restrictions on the players (region coding, ad display, who knows what else) to the conditions of the license. Which is, in the long run, worth a great deal more to them than simply squelching this one unsquelchable piece of code. (NB this is a somewhat odd authority theory --- we've been through the problems of how a license for you to decrypt your DVDs on your Panasonic DVD player can be conferred by a contract between the DVDCCA and Panasonic to which you are not a party. But the MPAA has made it pretty clear, in court and out of it, that this is their theory). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 17:49:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15736 for dvd-discuss-outgoing; Fri, 21 Jul 2000 17:49:00 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15732 for ; Fri, 21 Jul 2000 17:48:45 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA08677 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 17:50:35 -0400 Date: Fri, 21 Jul 2000 17:50:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective Message-ID: <20000721175029.A8435@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 21, 2000 at 08:32:27AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 08:32:27AM -0700, Michael.A.Rolenz@aero.org wrote: > > "business objectives" is an abstraction. Judges don't like dealing with > them. In contract law, in a breach of contract one is required to attempt > to mitigate damages. > > Actually, the music broadcasts are not free. I believe the stations all > have to pay fees to a consortium (RIAA or some such organization) that > distributes the money to the recording companies. Business establishments > cannot replay music broadcasts for this reason. From what a friend of mine > tells me (he's involved in the Boston Area Folk scene), the artists don't > get much money back from this either. Although ASCAP does collect for music broadcasts, it cannot collect for the playing of recordings in certain bars and restaurants, under the Copyright Term Extension Act. This is the subject of an action for restraint of trade under GATT by the European Union, currently under appeal. This goes to show that "theft" or "stealing" is a meaningless term. Movies, videos, music recordings, books, are all limited monopolies in which the author is granted statutory protection by means of the Constitution. They are not natural rights nor personal nor real property. They exist only for a limited term and they go into the public domain, and they must allow fair use otherwise there is no reason for copyright. The movie studios have no natural right to a profit stream in the future based on a business plan that stages releases. They would like to use copyright law to make that possible, but if it conflicts with the principles of law in copyright or antitrust, then it cannot hold. It is really up to Judge Kaplan to decide this issue properly. From some comments he has made he indicates that all this is a matter of law and not fact for him to determine. But that is silly. If LiViD uses DeCSS to produce a Linux DVD player for DVDs that users already own, then that would be fair use and the blanket coverage by the DMCA would not exist. This is a fact that Kaplan needs to have testimony on and decide. If he excludes that testimony, he may be overturned on appeal. And if he upholds the DMCA here then it would appear that fair use and first sale and reverse engineering exceptions and a limited copyright term and all those components of copyright law that derive from its Constitutional origin are gone. The practical effect would be to drive the market to the extremes, either pay-per-view, or rampant "piracy". And neither of those has much to do with copyright law. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:00:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16373 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:00:11 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16369 for ; Fri, 21 Jul 2000 17:59:55 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA08699 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 18:01:46 -0400 Date: Fri, 21 Jul 2000 18:01:40 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! Message-ID: <20000721180140.B8435@eldritchpress.org> References: <20000721164223.7776.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000721164223.7776.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Jul 21, 2000 at 09:42:23AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 09:42:23AM -0700, Bryan Taylor wrote: > > --- Sampo A Syreeni wrote: > > On Thu, 20 Jul 2000, Eric Eldred wrote: > > > > >Where did Shamos get the authority to decrypt "Sleepless > > >in Seattle"? Who gave it to him and under what authority? > > >Did the copyright holder do so, the MPAA (which doesn't > > >own the copyright), the CSS owners, or who? > > > > Wait just a second. Wasn't there something in the > > transcripts/depositions to suggest that the studios actually > > cannot grant the right to decrypt with an unauthorized player > > without breaching their contract with the DVD-CCA? This > > would seem to be in direct contradiction with what Shamos did... > > 1201(a)(1) is not in effect yet, so any acts of access conrtol > circumvention that Shamos did are not actionable. He did have verbal > permission, at minimum, so he didn't commit copyright infringement > either. This line of attach doesn't lead anywhere. Even if it did, the > defense doesn't have standing to bring any causes of action. You may be right about this. But 1) If circumventing the access controls under 1201(a)(1) is not actionable by anybody (yet), then how is it that the MPAA demands that DeCSS, a program intended to circumvent CSS, the access control program, be made illegal under DMCA now? 2) If Shamos had verbal permission, then from whom? The problem is that we need to have a clarification of the proper procedure here. Where is the license, which one is it, how does it govern the consumer after first sale, does the copyright holder have the power to grant a license to bypass DVD-CCA's license, does the MPAA have the power to authorize the bypassing, does DVD-CCA have that authority? There has been a lot of talk and confusion here, but I still have no idea of how the DVD-CCA license is connected to the studio's authority as a copyright holder, and how the DMCA governs how the consumer can figure out which authority applies. In other words, if there is a circumvention of an access control process, a circumvention that is not authorized, how does one get authorization? The consumer must already have authorization to decrypt the DVD, since she buys the keys along with the DVD and the player, and has to decrypt the files in order to play them back. But is some other authorization needed? What? It's not so much a question of bringing an action against Shamos. It's trying to figure out the authorization process here that Shamos got but 2600 readers didn't. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:06:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16487 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:06:32 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16484 for ; Fri, 21 Jul 2000 18:06:31 -0400 Received: from ppp.anonymizer.com (c06-104.015.popsite.net [64.24.77.104]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id PAA18408 for ; Fri, 21 Jul 2000 15:07:57 -0700 (PDT) Message-Id: <4.3.2.7.2.20000721150516.00ad2ac0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 21 Jul 2000 15:06:56 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Transcript, day 4 In-Reply-To: <200007212016.QAA07772@maynard.mail.mindspring.net> References: <200007211720.NAA07372@samsara.law.cwru.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 04:11 PM 7/21/2000 -0400, John Young wrote: >Peter Junger wrote: > > >May I say that your discussion of the (non-)distinction between source > >and object code is probably the clearest and most useful discussion that > >I have seen of that subject. The supposed distinction will quite > >likely become an issue when we go to trial to resolve the remaining > >issues in Junger v. Daley. > >Yes, Ed's commentary was highly informative, and deserves wide >reading amongst the judiciary and the attorneys handling crypto >cases, say, Bernstein. I took the liberty of sending it to Bernstein's attorneys, and some others, last night. This dang Internet thing is proving to be downright useful. ;-) -------------------------------------------------------------------- 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 Fri Jul 21 18:19:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16550 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:19:29 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16547 for ; Fri, 21 Jul 2000 18:19:09 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA08726 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 18:21:00 -0400 Date: Fri, 21 Jul 2000 18:20:55 -0400 From: Eric Eldred To: "'dvd-discuss@eon.law.harvard.edu'" Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721182054.C8435@eldritchpress.org> References: <383558CE36E2D311AC790004AC33FF67616C37@OZ> <20000721143325.C594@zork.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000721143325.C594@zork.net>; from schoen@loyalty.org on Fri, Jul 21, 2000 at 02:33:25PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 02:33:25PM -0700, Seth David Schoen wrote: >... > Oh, so, getting back to CSS, the point is not that "all security > systems will eventually be broken" (as both the MPAA witnesses and > Emmanuel Goldstein seem to agree!) but that CSS is woefully inadequate > against a capable adversary. And the application of CSS is inherently > flawed, because the science of cryptography isn't capable of doing > what the plaintiffs and their agents wanted it to (as Paul Fenimore > has pointed out here a couple of times). But this line of questioning has been foreclosed by Judge Kaplan. I don't understand exactly why, is it because of his interpretation of the "effective" clause of the statute? Yes, this question would be important for damages, but the studios have withdrawn that claim now. Yes, it would be important for a suit involving trademark or trade secrets, since the intellectual property owner must show that she vigorously defended them. But not for copyright; the owner doesn't need to defend that so vigorously. As far as "theft" goes, it seems to me that DeCSS is more like Judge Kaplan finding a $20 bill on the ground when he walks back from lunch, and puts it in his pocket. If you have keys to something important, you don't leave them lying on the street and then complain that somebody "stole" them, and if they do turn up missing you do something about it, not just wait until somebody picks something up and then claim it must be yours, because there is a coincidence of your misplacing something and somebody else finding something very much like what you lost. But this really is what the studios seem to claim, that it doesn't make any difference whether the access control is "effective" or not, as long as the studios intend it as an access control mechanism, it is illegal under DMCA to bypass it for any reason, including, as Professor Felton tried to point out, security analysis to show that the program is ineffective, or as Chris DiBona and Barbara Simons have deposed, fair use in terms of an owner of the DVD copying it or using it in a classroom. I think the studios are engaged in a suicidal process here. They must think that if they don't win this case they can go back to Congress and buy a better law. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:26:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16700 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:26:29 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16697 for ; Fri, 21 Jul 2000 18:26:28 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id OAA29376 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 14:37:47 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 14:37:20 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <383558CE36E2D311AC790004AC33FF67616C37@OZ> <20000721143325.C594@zork.net> <20000721182054.C8435@eldritchpress.org> In-Reply-To: <20000721182054.C8435@eldritchpress.org> MIME-Version: 1.0 Message-Id: <0007211437440H.02571@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, 21 Jul 2000, you wrote: > I think the studios are engaged in a suicidal process here. They > must think that if they don't win this case they can go back to > Congress and buy a better law. The sad thing is probably that there's something to that. --Russell -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:28:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16796 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:28:26 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16793 for ; Fri, 21 Jul 2000 18:28:11 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA08744 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 18:30:02 -0400 Date: Fri, 21 Jul 2000 18:29:57 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000721182957.D8435@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 21, 2000 at 02:39:29PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 02:39:29PM -0700, Michael.A.Rolenz@aero.org wrote: > > One interesting point here is that when a patent expires - everybody can > use it. When a trade secret gets known, everybody can use it. Now > presumably under DCMA, they don't have to tell ANYBODY what it is and if > anybody figures it out, they can take them to court. DVDs can be locked up > by them in perpetuity. Well, it seems that DMCA is covering trade secrets, by means of copyright laws. This is a slippery slope. But I'm not sure that the perpetuity argument is exact. Although the access controls cannot be circumvented, under DMCA, if the underlying work is copyrighted, it doesn't seem to state what happens if the work goes out of copyright. There is no mandatory deposit of source code with the Registrar of Copyright, no requirement that the keys be deposited to unlock the encrypted files when the term expires, no language that would prevent the producer of the DVD from "locking it up in perpetuity." Insofar as this is in conflict with the Constitution's requirement for a "limited term" of copyright and patent, it would be unconstitutional. But if there is an implication that the work once it does go into the public domain can be decrypted and access controls bypassed, then it would be okay. One problem is that works can be put under access control, with the assertion they are properly copyrighted, without the need to show that they are properly copyrighted. It then requires decrypting the files and bypassing the access controls to determine if the work is really "copyrightable" before one can determine if one can legitimately bypass the access controls to determine if the work is really "copyrightable" before one can determine if one can legitimately bypass the access controls to determine if the work is really "copyrightable" before one can determine if... I hope that Judge Kaplan's mathematical abiilities go beyond being able mentally to calculate 9 x 16. Does he need a lecture about recursion too? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:42:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16980 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:42:48 -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 SAA16977 for ; Fri, 21 Jul 2000 18:42:47 -0400 Received: from baron (max01-20.suba.com [206.69.121.212]) by suba01.suba.com (8.9.1a/8.9.1) with ESMTP id RAA01772 for ; Fri, 21 Jul 2000 17:41:49 -0500 (CDT) From: "sparky" To: dvd-discuss@eon.law.harvard.edu Date: Fri, 21 Jul 2000 17:41:37 -0500 MIME-Version: 1.0 Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Subject: Re: [dvd-discuss] Johansen Shines on Witness Stand in Defense of his Software Message-ID: <39788B51.13467.217E3E@localhost> In-reply-to: <200007210056.AA677642648@mail.virtualrecordings.com> X-mailer: Pegasus Mail for Win32 (v3.12c) Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 21 Jul 2000, at 0:56, Robin Gross wrote: > At the conclusion of Reider's testimony, the > Plaintiff's rested their case. Ladies and Gentlemen: the great Proskauer Rose. Is that really all they have to say? I don't know why.. somehow I was expecting us to be more stuck in a box than we appear.. sparky From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 18:49:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17098 for dvd-discuss-outgoing; Fri, 21 Jul 2000 18:49:00 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17095 for ; Fri, 21 Jul 2000 18:48:59 -0400 Received: by aero.org id <17089-3>; Fri, 21 Jul 2000 15:48:06 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdYLBa03090; Fri Jul 21 15:47:55 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 15:47:35 -0700 Subject: Re: [dvd-discuss] Here's a good site for info. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 03:47:34 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 15:47:59 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sadly....I think that's it. Look at DCMA. I've got to reread it to see if I missed something but it seems to have some undefined terms like access control - what accesses are being controlled. Jim Miller @eon.law.harvard.edu on 07/21/2000 03:26:42 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Here's a good site for info. On Fri, 21 Jul 2000, you wrote: > I think the studios are engaged in a suicidal process here. They > must think that if they don't win this case they can go back to > Congress and buy a better law. The sad thing is probably that there's something to that. --Russell -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:05:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17342 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:05:18 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17339 for ; Fri, 21 Jul 2000 19:05:17 -0400 Received: by aero.org id <17127-4>; Fri, 21 Jul 2000 16:04:14 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdNPBa03090; Fri Jul 21 16:02:51 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 16:02:09 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 04:02:08 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 16:03:01 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The other problem is that given the way they've done it. If I did break CSS to get at something that is out of copyright [assuming that that was permissible under DCMA], then I'd be getting all the keys. Personally, I'm leaning towards the argument that works distributed with access control and copy protection should not be given copyright protection [unless some conditions are met. What those are I don't know]. In one sense, they are violating a contract the copyright holder makes with the US Government. In exchange for allowing something to enter the public domain at the end of the copyright, the copyright holder is given a monopoly on the work. Also, he is given legal privileges. One being that there is NO defense against infringement in a court of law [unless the copyright itself can be invalidated but then there is no infringement because the copyright was fraudulently obtained]. Given that the damages are almost always all the money the infringer makes PLUS punitive damages, that's pretty good. So what do we have here? Access controls such as CSS do NOT allow work to enter the public domain at the end of copyright, so why should they be given copyright protection or the privileges that go with it? Eric Eldred @eon.law.harvard.edu on 07/21/2000 03:28:44 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 On Fri, Jul 21, 2000 at 02:39:29PM -0700, Michael.A.Rolenz@aero.org wrote: > > One interesting point here is that when a patent expires - everybody can > use it. When a trade secret gets known, everybody can use it. Now > presumably under DCMA, they don't have to tell ANYBODY what it is and if > anybody figures it out, they can take them to court. DVDs can be locked up > by them in perpetuity. Well, it seems that DMCA is covering trade secrets, by means of copyright laws. This is a slippery slope. But I'm not sure that the perpetuity argument is exact. Although the access controls cannot be circumvented, under DMCA, if the underlying work is copyrighted, it doesn't seem to state what happens if the work goes out of copyright. There is no mandatory deposit of source code with the Registrar of Copyright, no requirement that the keys be deposited to unlock the encrypted files when the term expires, no language that would prevent the producer of the DVD from "locking it up in perpetuity." Insofar as this is in conflict with the Constitution's requirement for a "limited term" of copyright and patent, it would be unconstitutional. But if there is an implication that the work once it does go into the public domain can be decrypted and access controls bypassed, then it would be okay. One problem is that works can be put under access control, with the assertion they are properly copyrighted, without the need to show that they are properly copyrighted. It then requires decrypting the files and bypassing the access controls to determine if the work is really "copyrightable" before one can determine if one can legitimately bypass the access controls to determine if the work is really "copyrightable" before one can determine if one can legitimately bypass the access controls to determine if the work is really "copyrightable" before one can determine if... I hope that Judge Kaplan's mathematical abiilities go beyond being able mentally to calculate 9 x 16. Does he need a lecture about recursion too? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:11:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17788 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:11:10 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17785 for ; Fri, 21 Jul 2000 19:11:09 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id TAA30102 for ; Fri, 21 Jul 2000 19:10:23 -0400 Date: Fri, 21 Jul 2000 19:10:23 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 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 07/21/00 at 16:03, 'twas brillig and Michael.A.Rolenz@aero.org scrobe: [...] > > Personally, I'm leaning towards the argument that works distributed with > access control and copy protection should not be given copyright protection > [unless some conditions are met. What those are I don't know]. In one > sense, they are violating a contract the copyright holder makes with the US > Government. In exchange for allowing something to enter the public domain > at the end of the copyright, the copyright holder is given a monopoly on > the work. Also, he is given legal privileges. One being that there is NO > defense against infringement in a court of law [unless the copyright itself > can be invalidated but then there is no infringement because the copyright > was fraudulently obtained]. [...] Is this a troll? "fair use" is *specifically* a defense against copyright infringement in a court of law, both by judicial and (later) statutory fiat. > [...] Given that the damages are almost always all > the money the infringer makes PLUS punitive damages, that's pretty good. > So what do we have here? Access controls such as CSS do NOT allow work to > enter the public domain at the end of copyright, so why should they be > given copyright protection or the privileges that go with it? Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:12:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17822 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:12:17 -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 TAA17819 for ; Fri, 21 Jul 2000 19:12:17 -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:2.21) with ESMTP id TAA13661 for ; Fri, 21 Jul 2000 19:11:25 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA28215; Fri, 21 Jul 2000 19:11:24 -0400 (EDT) Date: Fri, 21 Jul 2000 19:11:24 -0400 (EDT) Message-Id: <200007212311.TAA28215@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <20000721182054.C8435@eldritchpress.org> References: <383558CE36E2D311AC790004AC33FF67616C37@OZ> <20000721143325.C594@zork.net> <20000721182054.C8435@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > On Fri, Jul 21, 2000 at 02:33:25PM -0700, Seth David Schoen wrote: > > ...CSS is woefully inadequate > > against a capable adversary. And the application of CSS is inherently > > flawed, because the science of cryptography isn't capable of doing > > what the plaintiffs and their agents wanted it to (as Paul Fenimore > > has pointed out here a couple of times). > > But this line of questioning has been foreclosed by Judge > Kaplan. I don't understand exactly why, is it because of his > interpretation of the "effective" clause of the statute? More than likely --- the statute's definition, which the judge has read in open court (dolefully noting that it was "written by Congress, not by me") says that (quoting from memory): A technical measure "effectively controls access to a work" if it requires the application of information, or a process or treatment, with authority of the copyright owner, to gain access to the work. There's just nothing there about how easy it is to defeat. However, it's worth asking in what sense CSS "requires the authority of the copyright owner". For something like pay-per-view cable programming, it's fairly clear --- there is a key associated with each program which serves as a token of the copyright holder's authority, and which is downloaded into your set-top box, and if that key hasn't been loaded into yours, you don't get access. The set-top box uses the token to perform an affirmative check to see if you are authorized. However, CSS performs no such check --- if you have a CSS-"protected" disk, and a licensed player, then CSS *never* keeps you from seeing the movie on the disk. (Some other technical measure, such as region coding, might stop you from seeing it, but that other measure is *not* CSS itself, as the plaintiffs have admitted in other forums, and its action is not a result of CSS access control). So, the plaintiffs say that "authority of the copyright owner" means "played on a device manufactured under license from the copyright owner". This creates the very uncomfortable result for some of the techies here that if CSS is described as "access control", then *anything* could be described by access control --- at least, any process which is required to gain access to a work, and licensed by a copyright owner. Which is where the new, unlimited form of intellectual property grant comes from --- having concocted an "access control" process, the copyright holders get to license that process in perpetuity, attach arbitrary conditions, et cetera, ad nauseam. On the other hand, if you read the law so that "effective access control" means that the device *performs an affirmative check of some authority token*, however poorly (and correspondingly restrict "circumvention" to be the act of *defeating* such a test, and not merely gaining access to a work you already bought), then the new form of intellectual property grant, and the attendant antitrust problems, go away. (Which leaves other problems, such as the crippling effect the law has on fair use, but one rant at a time). Well, enough of this. If you'd like one person's take on this issue at greater length, I've collected a number of different arguments along these lines, along with a general overview at: http://www.ai.mit.edu/people/rst/dmca/auth/auth.html Beware, however, that this was written by a well-known and notorious non-lawyer. Note particularly the section on legislative history --- the plaintiffs' reading would amount to negating the Supreme Court's ruling in the well-known Betamax case. While that's something that Congress is clearly entitled to do, their own words indicate that they were trying to *preserve* it, and in fact, amended the law to that end. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:23:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18036 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:23:31 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18032 for ; Fri, 21 Jul 2000 19:23:30 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id QAA15350 for ; Fri, 21 Jul 2000 16:22:42 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma015153; Fri, 21 Jul 00 16:22:05 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id RAA01866; Fri, 21 Jul 2000 17:22:04 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Here's a good site for info. Date: Fri, 21 Jul 2000 17:25:27 -0600 Message-ID: <003601bff36a$f41a23e0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 From: ---------------------------------------------------------------------------- ---- > Richard Hartman writes: >> I think that is going the wrong direction. The real point >> is, that even if CSS had been the strongest encryption possible, >> the KEYS WERE DISTRIBUTED ALONG WITH THE ENCRYPTED MATERIAL. >> >> A lock with the key welded into it is no lock. Seth David Schoen replies: > There are several different kinds of keys. You still need a player > key. Not only the algorithm, but also the player keys, are "secret", > except, strangely, both are to be found in widely-distributed software > players. But both keys are welded into their respective locks. If I weld the door key and the deadbolt key into my knob and deadbolt respectively I have TWO knobs but still no locks. The key for the player is on the player and the key for the title is on the title. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:29:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18392 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:29:55 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18351 for ; Fri, 21 Jul 2000 19:29:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA08829 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 19:31:32 -0400 Date: Fri, 21 Jul 2000 19:31:27 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] illegal ideas Message-ID: <20000721193126.A8759@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: EldritchPress.org Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I was struck by the deposition of Barbara Simons, ex-president of ACM, at http://www.eff.org/IP/Video/MPAA_DVD_cases/20000708_ny_simons_dep.html p 19ff 13 A. I think -- first of all, I think the whole 14 approach of the legislation is wrong. Rather than 15 penalizing technologies and technological devices, I 16 think what should have been done was to go after 17 behavior and, in fact, what I was hoping would pass was 18 the Candle-Boucher Bill. 19 I think it's a mistake to attempt to criminalize 20 technologies, and in particular it's a mistake to do that 21 when the people who are doing it don't understand 22 implications of what they are attempting to criminalize. 23 For example, I firmly believe that everybody in 24 Congress wants -- it's based on computer security. 25 (Interruption in the proceedings.) p91ff 9 Q. And my question is, where does that leave you in 10 terms of the existence of laws against circumvention? 11 A. I think that they're a bad idea. They can 12 prevent people from reverse engineering software to 13 eliminate bugs and viruses. They can prevent people 14 from posting problems about software on the net so that 15 others can correct those problems. They can prevent 16 people doing computer security R&D from using a lot of 17 their tools which frequently involve trying to break 18 into systems. 19 The fact is that we can't prove the correctness 20 of computer systems. All we can do -- I mean what 21 people do is they try to break them. When they succeed, 22 then they've found a vulnerability which then gets 23 patched. 24 I'm not talking about people who have tried to 25 break them for criminal reasons. I'm talking about 92 1 people who break them because they want them to be 2 secure. And this frequently involves circumvention. 3 Many of these tools, which are standard tools, 4 they need to be taught to students who will continue to 5 do computer security work in the future. 6 And again, I'm not a lawyer, but it seems to me 7 that one danger is you could read the DMCA as preventing 8 some of this kind of activity, which I think would be a 9 disaster. Judge Kaplan has been groping, I think, in all this testimony to try to figure out just what to do. He obviously can't stop the 39,999 canoes coming down the Hudson. There is no question of damages any more. He could somehow rule that DeCSS code was illegal--this is all the MPAA asks now. But what's the point of declaring an idea is illegal? I mean, what are you going to do, lock up a book, instead of the one who is selling the book? The DMCA rests on the proposal by the MPAA that U.S. copyright law was inadequate to protect their business interests. Therefore they sought the DMCA to do two things: declare a right going beyond copyright law, that allows them to deny fair use to consumers, first sale rights, all the other rights connected with copyright; and second to declare that any idea or computer code that attempts to circumvent their access control technology would be illegal. The problem is that the DMCA imposes criminal penalties on persons, legal persons. There is no concept that I know of for fixing criminal responsibility on an idea, on some piece of computer code. But that is what we are left with in this case. Jon Johansen is charged with "breaking into a computer"--but what computer, his own, his father's? Emmanuel Goldstein is charged with harboring an idea, publishing a piece of computer code that is illegal? The plaintiffs stipulate that nobody has been discovered using DeCSS to infringe on copyright; there is no question of damages. Nobody has been shown to use DeCSS to do anything illegal at all; on the other hand, Professor Felton and Barbara Simons state that there are perfectly valid reasons under the First Amendment, and under ordinary and customary academic practice, to reverse engineer the code and determine its security, and to inform the public of the findings. The magazine 2600 is a publisher; The New York Times is a publisher--do they have any First Amendment rights here? How can an idea have First Amendment rights? Still, the studios paradoxically claim that unless Judge Kaplan makes DeCSS illegal under DMCA, "piracy" will flourish and they will go out of business. But they have shown no such thing, only their presumption that unless Kaplan gives a stern warning, the studio anti-piracy teams will have to use ordinary copyright law and go before a judge to make their claims, instead of being able to kick off the Internet whatever ideas they find dangerous to their business interests. Martin Garbus ought to be able to make a fine speech about this. Nobody, no Congress, no judge, ought to make ideas illegal. Individual people ought to be responsible under the law. Neither the studios nor Emmanuel Goldstein ought to be exempt from that requirement. It is not technology under trial here. It is a particular monopoly, the MPAA, that is trying to use control of technology for their own purposes, and those purposes are in conflict with the Constitution. And this control of technology is futile. You can't pass a law to control technology or ideas. So if Judge Kaplan rules that DeCSS is somehow "illegal," what will that mean? Nothing. But if he decides that making an idea illegal is preposterous, then he needs to overturn the DMCA. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:34:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19125 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:34:57 -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 TAA19122 for ; Fri, 21 Jul 2000 19:34:56 -0400 Message-ID: <20000721233340.21466.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Fri, 21 Jul 2000 16:33:40 PDT Date: Fri, 21 Jul 2000 16:33:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Johansen Shines on Witness Stand in Defense of his 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 --- sparky wrote: > At the conclusion of Reider's testimony, the > > Plaintiff's rested their case. > > Ladies and Gentlemen: the great Proskauer Rose. > > Is that really all they have to say? I don't know why.. somehow I > was expecting us to be more stuck in a box than we appear.. Well, I thought they had a better opening statement than we did (sorry Marty) -- but that's about it. I would say that everything else has gone our way. Some of our side's cross examinations ripped big holes in their doomsday scenario. I don't think they damaged any of our witnesses in any substantial way. About all they did managed to prove is that it is theoretically possible to commit piracy with DeCSS and DivX, which we've never denied. They tried to paint a dire picture of harm, but Garbus did a great job of showing that all the other methods for grabbing the movie mean that without DeCSS they'd be in the same bind. I would say that on RE, we've scored MAJOR points. The connection of DeCSS to LiViD it seems to me is firmly established. The creation of DeCSS was an act of reverse engineering and the distribution of it's source code was to promote interoperability. I'd also say that on the free speech side, we've scored points. Felten provided a great rational for posting case study code and also for saying that object code and source code really both communicate programming ideas. There's still a gap that Goldstein has to provide -- that has to do with his motives. He still has to qualify for 1201(f)(3). Hopefully Felten's testimony will set the stage for Goldstein to make his "access to information" case. There's obviously some points of law that we'll have to make later, but I'm pretty happy with the factual record that's being produced. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 19:41:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19866 for dvd-discuss-outgoing; Fri, 21 Jul 2000 19:41:46 -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 TAA19863 for ; Fri, 21 Jul 2000 19:41:45 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id TAA03684; Fri, 21 Jul 2000 19:40:59 -0400 Date: Fri, 21 Jul 2000 19:40:59 -0400 From: Jim Bauer Message-Id: <200007212340.TAA03684@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] no contract in sale Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni wrote: >On Thu, 20 Jul 2000, Leland Ray wrote: > >>"There is no contract between Time Warner and the ultimate consumer." >> >>"...whatever rights you acquire...is a function of the Copyright Act >>and the DMCA..." > >It seems nice but it isn't. It siply tells us that Kaplan is buying the Ps' >theory. That is, no explicit authorization means no authorization. Then wouldn't that mean *noone* has *ever* been authorized reguardless of the player being used? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 20:00:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA23231 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:00:50 -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 UAA23228 for ; Fri, 21 Jul 2000 20:00:48 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA03816; Fri, 21 Jul 2000 20:00:02 -0400 Date: Fri, 21 Jul 2000 20:00:02 -0400 From: Jim Bauer Message-Id: <200007220000.UAA03816@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective... Newsgroups: local.dvd-discuss In-Reply-To: <200007210246.WAA22687@soggy-fibers.ai.mit.edu> References: <397769AD.17861.17B80D@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > >By this standard, the only way to judge whether something is an access >control process is the intent of the copyright holders, and the only >way to judge that is the copyright owners' declarations. In other >words, it's access control if they say it is. And by saying so, they >gain a permanent patent-like monopoly on the process. Good deal. > >(Of course, if you interpret the "effective access control" definition >to mean that the technological measure must *test* whether the viewer >has the copyright holder's authority --- meaning that there are cases >where it will *deny* access "in the ordinary course of its operation", >then this problem at least goes away...). This would seem, to me at least, to be the only sane interpertation possible. If a so called "access control" method always says "approved" no matter what, if cannot possibly be an _access_ control. And it certainly isn't an effective one. It doesn't control access to anything. Actually there is one circumstance where it could deny access. That is using a newly released DVD in a player that had it keys revoked. Now in this case, you buy a new player and then magically your are now "authorized" to access the disk. This isn't access control. This is force-people-to-keep-buying-new-players control. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 20:21:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24802 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:21:51 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA24799 for ; Fri, 21 Jul 2000 20:21:49 -0400 Received: by aero.org id <17233-3>; Fri, 21 Jul 2000 17:20:55 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJAAa26002; Fri Jul 21 17:20:49 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 17:20:19 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 05:20:18 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 17:20:55 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu OK. Your are correct. IANAL but I should have been more precise in my terminology. By "infringement" I was excluding fair use. I was thinking of the more traditional cases. If I copy a book and sell it to others. The owner of the copyright need only show that I did this. At that point, If I can't show that I have gotten the copyright holder's permission, it's all over. The only question is damages. Many of the "fair uses" , are not so much a defense as it is a statement that no suit should have been filed in the first place- "You can't sue me because I quoted from your book and said it stunk","Quoting from your book during my lecture is NONCOMMERCIAL USE". My point was that access control such as CSS seems to violate "fair use" apriori since it does not allow access after copyright expiration. Ole Craig @eon.law.harvard.edu on 07/21/2000 04:11:23 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 On 07/21/00 at 16:03, 'twas brillig and Michael.A.Rolenz@aero.org scrobe: [...] > > Personally, I'm leaning towards the argument that works distributed with > access control and copy protection should not be given copyright protection > [unless some conditions are met. What those are I don't know]. In one > sense, they are violating a contract the copyright holder makes with the US > Government. In exchange for allowing something to enter the public domain > at the end of the copyright, the copyright holder is given a monopoly on > the work. Also, he is given legal privileges. One being that there is NO > defense against infringement in a court of law [unless the copyright itself > can be invalidated but then there is no infringement because the copyright > was fraudulently obtained]. [...] Is this a troll? "fair use" is *specifically* a defense against copyright infringement in a court of law, both by judicial and (later) statutory fiat. > [...] Given that the damages are almost always all > the money the infringer makes PLUS punitive damages, that's pretty good. > So what do we have here? Access controls such as CSS do NOT allow work to > enter the public domain at the end of copyright, so why should they be > given copyright protection or the privileges that go with it? Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key Thomas Penfield Jackson for President! From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 20:25:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA24951 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:25:32 -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 UAA24948 for ; Fri, 21 Jul 2000 20:25:31 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA04055; Fri, 21 Jul 2000 20:24:44 -0400 Date: Fri, 21 Jul 2000 20:24:44 -0400 From: Jim Bauer Message-Id: <200007220024.UAA04055@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] file size? Newsgroups: local.dvd-discuss In-Reply-To: <20000720230412.B7754@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >I confess I've never used DeCSS nor css-auth nor >ripped a DVD or DiVX, but I have a question about the >testimony of Shamos and Schumann. Both claimed >to have decrypted and essentially "copied" a DVD, >and then according to plaintiff's lawyers one traded >this copy over the Internet, and the other did >testify that such trading was assumed to take >place (and the judge seemed to confirm that as >being unnecessary even to answer). > >Is there a limit to Windows file size? > >Shamos [see below] testified that he was unable to make >a full copy of "Sleepless in Seattle" because Eric >Burns could not save a file larger than 4GB on the >Windows (98?/2000?) system on the Sony laptop. >Both testified that DVDs generally are around 4.6 or >4.7GB in size. >From earlier postings I gathered that 98 had the filesize limit so they had to upgrade to either NT or 2000 in order to save the un-CSSed video from the DVD into a single file. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 20:34:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25156 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:34:16 -0400 Received: from zork.zork.net (coranado.parts-unknown.com [208.25.84.245]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25153 for ; Fri, 21 Jul 2000 20:34:13 -0400 Received: from schoen by zork.zork.net with local (Exim 3.12 #1 (Debian)) id 13FnEJ-0003Da-00; Fri, 21 Jul 2000 17:33:23 -0700 Date: Fri, 21 Jul 2000 17:33:23 -0700 From: Seth David Schoen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000721173323.H594@zork.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <003601bff36a$f41a23e0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0.1i In-Reply-To: <003601bff36a$f41a23e0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Fri, Jul 21, 2000 at 05:25:27PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Zulauf writes: > But both keys are welded into their respective locks. If I weld the door > key and the deadbolt key into my knob and deadbolt respectively I have TWO > knobs but still no locks. The key for the player is on the player and the > key for the title is on the title. But human beings can't read object code! Only computers can read object code! -- Seth David Schoen | And do not say, I will study when I Temp. http://www.loyalty.org/~schoen/ | have leisure; for perhaps you will down: http://www.loyalty.org/ (CAF) | not have leisure. -- Pirke Avot 2:5 From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 20:38:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA25806 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:38:35 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA25803 for ; Fri, 21 Jul 2000 20:38:33 -0400 Received: from ppp.anonymizer.com (c03-073.015.popsite.net [64.24.74.73]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id RAA21125 for ; Fri, 21 Jul 2000 17:40:01 -0700 (PDT) Message-Id: <4.3.2.7.2.20000721173635.00ad7de0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 21 Jul 2000 17:38:59 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <20000721173323.H594@zork.net> References: <003601bff36a$f41a23e0$87ce0593@ia.nsc.com> <003601bff36a$f41a23e0$87ce0593@ia.nsc.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 05:33 PM 7/21/2000 -0700, Seth David Schoen wrote: >John Zulauf writes: > > > But both keys are welded into their respective locks. If I weld the door > > key and the deadbolt key into my knob and deadbolt respectively I have TWO > > knobs but still no locks. The key for the player is on the player and the > > key for the title is on the title. > > >But human beings can't read object code! Only computers can read >object code! > Seth, Seth, Seth, you are so naive. But human beings (who work for Plaintiffs, the only ones who matter) can't read object code! Only computers and sub-human hackers can read object code! -------------------------------------------------------------------- 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 Fri Jul 21 20:53:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28238 for dvd-discuss-outgoing; Fri, 21 Jul 2000 20:53:14 -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 UAA28223 for ; Fri, 21 Jul 2000 20:53:13 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA04263; Fri, 21 Jul 2000 20:52:26 -0400 Date: Fri, 21 Jul 2000 20:52:26 -0400 From: Jim Bauer Message-Id: <200007220052.UAA04263@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Newsgroups: local.dvd-discuss In-Reply-To: <20000721182957.D8435@eldritchpress.org> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >On Fri, Jul 21, 2000 at 02:39:29PM -0700, Michael.A.Rolenz@aero.org wrote: >> >> One interesting point here is that when a patent expires - everybody can >> use it. When a trade secret gets known, everybody can use it. Now >> presumably under DCMA, they don't have to tell ANYBODY what it is and if >> anybody figures it out, they can take them to court. DVDs can be locked up >> by them in perpetuity. > >Well, it seems that DMCA is covering trade secrets, by means of >copyright laws. This is a slippery slope. > >But I'm not sure that the perpetuity argument is exact. Although >the access controls cannot be circumvented, under DMCA, if the >underlying work is copyrighted, it doesn't seem to state what >happens if the work goes out of copyright. There is no mandatory >deposit of source code with the Registrar of Copyright, no >requirement that the keys be deposited to unlock the encrypted >files when the term expires, no language that would prevent the >producer of the DVD from "locking it up in perpetuity." > >Insofar as this is in conflict with the Constitution's requirement >for a "limited term" of copyright and patent, it would be >unconstitutional. But if there is an implication that the >work once it does go into the public domain can be decrypted and >access controls bypassed, then it would be okay. And this would be another legit use of something like DeCSS. DeCSS has substantial non-infringing uses. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:24:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30038 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:24:10 -0400 Received: from ts0210.bates.edu (root@ts0201.bates.edu [134.181.72.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30035 for ; Fri, 21 Jul 2000 21:24:07 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id VAA00902 for ; Fri, 21 Jul 2000 21:29:15 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Fri, 21 Jul 2000 21:29:13 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Johansen Shines on Witness Stand in Defense of his Software In-Reply-To: <20000721233340.21466.qmail@web510.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On Fri, 21 Jul 2000, Bryan Taylor wrote: > > There's obviously some points of law that we'll have to make later, but > I'm pretty happy with the factual record that's being produced. I'm happy that the factual record has established what seems to be irrefutable evidence of large-scale combinations in restraint of trade. I think the EFF CAFE's next project ought to be suing the P's for all their worth. Remember, treble damages in private anti-trust suits. And they gave all they evidence we need under oath. I'm only half joking about this. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5eQb7t+kM0Mq9M/wRAk81AKC01btsRI4n67LqZ91zyja/nqSdaACeKxsU EWAYUg6T6AAr40kmo1PBaDM= =eWNw -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:27:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30184 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:27:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30181 for ; Fri, 21 Jul 2000 21:27:15 -0400 Received: by aero.org id <17338-4>; Fri, 21 Jul 2000 18:26:25 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa00284; Fri Jul 21 18:26:17 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 18:25:47 -0700 Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 06:25:46 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 18:26:22 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think that's the arguments some of the libraries are using in their DMCA comments. [A link to the commerce department is at the eff website.]. But I don't like the idea that one group, the libraries, should be allowed to do something that the general public cannot. It's like the silly clauses in DMCA regarding exclusions for researchers. I don't know who qualifies as "experts" or how one would get to be one. BTW - Did any one catch the fact that the plaintiffs made it a point that Stevenson was not testifying as an expert witness. A friends comment on that was "he did the cryptanalysis in 3 days...and he's not an expert...you'd think the MPAA would get a clue about THEIR experts" Jim Bauer @eon.law.harvard.edu on 07/21/2000 05:53:33 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Eric Eldred wrote: >On Fri, Jul 21, 2000 at 02:39:29PM -0700, Michael.A.Rolenz@aero.org wrote: >> >> One interesting point here is that when a patent expires - everybody can >> use it. When a trade secret gets known, everybody can use it. Now >> presumably under DCMA, they don't have to tell ANYBODY what it is and if >> anybody figures it out, they can take them to court. DVDs can be locked up >> by them in perpetuity. > >Well, it seems that DMCA is covering trade secrets, by means of >copyright laws. This is a slippery slope. > >But I'm not sure that the perpetuity argument is exact. Although >the access controls cannot be circumvented, under DMCA, if the >underlying work is copyrighted, it doesn't seem to state what >happens if the work goes out of copyright. There is no mandatory >deposit of source code with the Registrar of Copyright, no >requirement that the keys be deposited to unlock the encrypted >files when the term expires, no language that would prevent the >producer of the DVD from "locking it up in perpetuity." > >Insofar as this is in conflict with the Constitution's requirement >for a "limited term" of copyright and patent, it would be >unconstitutional. But if there is an implication that the >work once it does go into the public domain can be decrypted and >access controls bypassed, then it would be okay. And this would be another legit use of something like DeCSS. DeCSS has substantial non-infringing uses. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:31:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30439 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:31:59 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30436 for ; Fri, 21 Jul 2000 21:31:58 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA02982 for ; Fri, 21 Jul 2000 18:31:08 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA26248; Fri, 21 Jul 2000 18:29:17 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 21 Jul 2000 18:28:10 -0700 Organization: A poorly-installed InterNetNews site Lines: 42 Distribution: isaac Message-ID: <8latba$pk6$1@blowfish.isaac.cs.berkeley.edu> References: <8l92k0$k7g$1@blowfish.isaac.cs.berkeley.edu> <0FY100351RY37Y@mta6.snfc21.pbi.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Hsieh wrote: > So as long as we are querying each other -- > Is Clinton *also* partly to blame? > What I mean is, had the DVD-CCA been allowed to use, say 128 bits, > could the CSS algorithm have been fixed to allowed them to rely on > their "revoke the bad keys" strategy? Or is the CSS algorithm more > fundamentally flawed? Or is this not yet known? There are a number of different flaws in the DVD security architecture. Some can be fixed by stronger ciphers; some can't. Here are three that occur to me off the top of my head: - Software players are available. This is simply incompatible with security. The fix is easy: don't build software players. - The CSS cipher has a 40-bit key, and thus is very susceptible to exhaustive keysearch. You _can_ fix this. At the time DVD's were released, the government was allowing full export of 56-bit systems, and I /believe/ the EAR allowed you to export decryption-only systems at any strength you like. Thus, there seems to have been no good reason to use a 40-bit cipher. A 56-bit cipher is not immune from exhaustive keysearch, either, but it raises the bar. A 128-bit algorithm is, for all practical purposes, immune from keysearch. - The CSS cipher was flawed and allowed short-cut attacks. This is Frank Stephenson's discovery. In fact, these flaws were really, really bad. This could have been easily avoided if the industry had simply avoided using a homebrew algorithm. However, the cynics among us can theorize that maybe, just maybe, the CSS cipher was selected _not_ for security against copy pirates but for market control, and in that case, the critera are completely different: trade secret and patent matters a lot, and resistance to shortcut attacks is essentially irrelevant. So, you'd have to work pretty hard to put together an argument that Clinton is also partially to blame for this fiasco; maybe the argument can be made, but I'm not sure how convincing it will be. _All_ of the flaws above can be fixed, and could have been gotten right in the first iteration. All of them should have been obvious to any cryptographer worth his salt. But the industry opted, for whatever reasons, to go with a flawed system. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:36:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30730 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:36:33 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30727 for ; Fri, 21 Jul 2000 21:36:32 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id UAA09994 for ; Fri, 21 Jul 2000 20:35:28 -0500 Message-ID: <3978F8E1.C85F9108@mninter.net> Date: Fri, 21 Jul 2000 20:29:05 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] illegal ideas References: <20000721193126.A8759@eldritchpress.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 Eric Eldred wrote: > Judge Kaplan has been groping, I think, in all this testimony > to try to figure out just what to do. [...] Well summed up, Eric. It's nice to have the forest pointed out us, blinded by the trees we've planted. It brings up another common issue (probably more clearly than I'm going to butcher now). If Kaplan determines DeCSS illegal under 1201, there is a clear path to a challenge to 1201 on constitutional grounds. I think the law, despite its name, sounds as if it was written with a world of physical objects in mind. Banning a device or a box is a universe apart from banning an idea or speech. So either 1201 intends to control commercial distribution of actual boxes that had the sole purpose of circumventing access controls (power from the commerce clause), or it's got some real consitutional problems. So maybe Kaplan offers the MPAA a damned-if-you-do proposal: Criminalize DeCSS and other software like it, and risk losing your entire law... Or realize that this is not the battle to fight. I believe the studios have painted themselves into this corner, and even the judge can't airlift them out. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:38:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30791 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:38:50 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30788 for ; Fri, 21 Jul 2000 21:38:49 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA03030 for ; Fri, 21 Jul 2000 18:37:59 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA26271; Fri, 21 Jul 2000 18:36:08 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 21 Jul 2000 18:35:59 -0700 Organization: A poorly-installed InterNetNews site Lines: 17 Distribution: isaac Message-ID: <8latpv$pku$1@blowfish.isaac.cs.berkeley.edu> References: <383558CE36E2D311AC790004AC33FF67616C37@OZ> <20000721143325.C594@zork.net> <20000721182054.C8435@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > On Fri, Jul 21, 2000 at 02:33:25PM -0700, Seth David Schoen wrote: > > Oh, so, getting back to CSS, the point is not that "all security > > systems will eventually be broken" (as both the MPAA witnesses and > > Emmanuel Goldstein seem to agree!) but that CSS is woefully inadequate > > against a capable adversary. > > But this line of questioning has been foreclosed by Judge > Kaplan. No, I don't think it has. Kaplan has pointed out that it is irrelevant to the "effective" clause of the statute. However, Garbus has argued that this line of reasoning is important in deciding damages (e.g., for the injunction, and for First Amendment balancing arguments, and for specialized defenses): if the MPAA had a self-help remedy, and failed to use it, what does that say about whether the court should grant them special remedies? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 21:42:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA30946 for dvd-discuss-outgoing; Fri, 21 Jul 2000 21:42:09 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA30943 for ; Fri, 21 Jul 2000 21:42:08 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA03057 for ; Fri, 21 Jul 2000 18:41:18 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA26295; Fri, 21 Jul 2000 18:39:27 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Date: 21 Jul 2000 18:39:17 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8lau05$plm$1@blowfish.isaac.cs.berkeley.edu> References: <20000721132851.B8325@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > But they could have started out with an argument that DeCSS > itself violated their intellectual property rights, for > example trade secrets. They already tried that. Read up on the California case. Outside legal observers have been reporting for some time that Hollywood seems more likely to prevail in the NY DMCA case than in the California trade secrets case. I have no reason to believe that they are wrong. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 22:20:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA31635 for dvd-discuss-outgoing; Fri, 21 Jul 2000 22:20:14 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA31632 for ; Fri, 21 Jul 2000 22:20:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA08962 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 22:21:57 -0400 Date: Fri, 21 Jul 2000 22:21:52 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Johansen Shines on Witness Stand in Defense of his Software Message-ID: <20000721222152.B8759@eldritchpress.org> References: <20000721233340.21466.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sam@uchicago.edu on Fri, Jul 21, 2000 at 09:29:13PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 09:29:13PM -0500, sam th wrote: > -----BEGIN PGP SIGNED MESSAGE----- > Hash: SHA1 > > On Fri, 21 Jul 2000, Bryan Taylor wrote: > > > > There's obviously some points of law that we'll have to make later, but > > I'm pretty happy with the factual record that's being produced. > > I'm happy that the factual record has established what seems to be > irrefutable evidence of large-scale combinations in restraint of trade. There's another point here. Judge Kaplan refused to allow testimony about the origins of the DMCA, why the MPAA bought the law they did. He was overly concerned that Garbus would paint a record of the time when his law firm was involved with Warner. However, his refusal also means that on appeal this question can be reopened, and another chance to build the factual record more completely can be done all over again, or the refusal cause a reversal. Either way, defendants are better off. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 22:26:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA31784 for dvd-discuss-outgoing; Fri, 21 Jul 2000 22:26:42 -0400 Received: from smtp03.mrf.mail.rcn.net (smtp03.mrf.mail.rcn.net [207.172.4.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA31781 for ; Fri, 21 Jul 2000 22:26:41 -0400 Received: from 209-122-247-120.s120.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.120]) by smtp03.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13FozC-0000ux-00 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 22:25:55 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <200007220024.UAA04055@emperor.hwrd1.md.home.com> References: <200007220024.UAA04055@emperor.hwrd1.md.home.com> Date: Fri, 21 Jul 2000 22:24:08 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] file size? 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 >Eric Eldred wrote: > >I confess I've never used DeCSS nor css-auth nor > >ripped a DVD or DiVX, but I have a question about the > >testimony of Shamos and Schumann. Both claimed > >to have decrypted and essentially "copied" a DVD, > >and then according to plaintiff's lawyers one traded > >this copy over the Internet, and the other did > >testify that such trading was assumed to take > >place (and the judge seemed to confirm that as > >being unnecessary even to answer). > > > >Is there a limit to Windows file size? > > > >Shamos [see below] testified that he was unable to make > >a full copy of "Sleepless in Seattle" because Eric > >Burns could not save a file larger than 4GB on the > >Windows (98?/2000?) system on the Sony laptop. > >Both testified that DVDs generally are around 4.6 or > >4.7GB in size. > > >From earlier postings I gathered that 98 had the filesize limit >so they had to upgrade to either NT or 2000 in order to >save the un-CSSed video from the DVD into a single file. Generally, the DVD has several VOB files each approximately 1 Gigabyte in size. DeCSS can combine these 1 gig files into files of longer length. For instance, if you had a good mpeg2 player in linux, you could boot Windows (NT), decode and concatenate the several VOB files into one 4.7 gig stream, boot back into linux, and then play that without having to deal with "section breaks." However, the file size limitation does not come into play if you do not specifically ask that the files be concatenated. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 22:53:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA32463 for dvd-discuss-outgoing; Fri, 21 Jul 2000 22:53:12 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA32459 for ; Fri, 21 Jul 2000 22:53:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA08983 for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 22:54:54 -0400 Date: Fri, 21 Jul 2000 22:54:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] authorization Message-ID: <20000721225449.C8759@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Been trying to understand this authorization question still. Maybe you can help me. Let me pose something hypothetical. DMCA refers only to authorization from the copyright holder. But clearly there is another sort of authorization that is being confused with that in this case. I mean the authorization from DVD-CCA to reverse engineer their software, in order to make a DVD player for Linux. The two authorizations are very different. Now, the authorization from the copyright holder to use the content has to come at the time of purchase of the DVD. There is no other way it could except at first sale. And this authorization comes complete with the ability to use the content, to play the disc, and to decrypt the content, as necessary. (We will leave aside for a moment the question of fair use.) If not, there is no sense in authorization. Now, the studios seem to be claiming that nobody is authorized to do that except by using the access control programs they supply, and that they cross license with DVD-CCA. But there doesn't seem to be anything in DMCA that requires this second license or authorization. The only feature of DMCA that applies is the proscription against "circumventing access control." But this circumvention (using one or another means) has already been authorized by the copyright holder at the time of first sale. The consumer never agreed to any second license. The law neither requires it nor prohibits it, it is just absent except as some sort of direct authorization by the copyright holder. Therefore, any use of DeCSS to decrypt a DVD and play the purchased DVD content on a Linux machine--whether or not the access control mechanism is the same as that from DVD-CCA--is likewise authorized. Since DeCSS has many other uses and reasons for existence that are completely legitimate and allowed by law, there is no reason to claim it is some means of circumventing access control mechanisms THAT IS NOT AUTHORIZED BY THE COPYRIGHT HOLDER. Presumably the question would be different if the user of DeCSS did not possess the physical disc. But DeCSS works exactly that way--you put the physical disc in the drive. The disc comes with the copyright holder's authorization. Now, it may be true that the disc player is not authorized by DVD-CCA. But where is that covered by DMCA? The law only refers to the copyright holder's authorization, not some sort of patent or cross license among disc player manufacturers. Anyway, there has been no testimony in this case that DeCSS is a violation of DVD-CCA's intellectual property. There has only been testimony that DeCSS might potentially damage the future profit stream of movie studios. The MPAA has failed to show the authorization process, how one can get authorization, or why this particular use of DeCSS is not authorized by the content copyright holders, when the viewer of the DVD possesses the physical disc. Further, the studios allege that their copyrighted content is being distributed on the Internet as a result of DeCSS. But DeCSS is no more responsible for this possible infringement than is MP4 or FTP. It is neither necessary nor sufficient. The MPAA has stipulated they have no evidence of DeCSS being used in this way. Therefore, DeCSS has already been authorized by MPAA and the case is moot. If not, then MPAA and DVD-CCA are trying to misuse copyright law in restraint of trade, and should pay damages and attorney fees to defendants in consequence. Maybe this is what others have been trying to say on this list and I have been too dense to understand. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 23:49:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02528 for dvd-discuss-outgoing; Fri, 21 Jul 2000 23:49:21 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA02525 for ; Fri, 21 Jul 2000 23:49:20 -0400 Received: by aero.org id <17450-3>; Fri, 21 Jul 2000 20:48:31 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa07297; Fri Jul 21 20:48:19 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 21 Jul 2000 20:04:28 -0700 Subject: Re: [dvd-discuss] illegal ideas To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/21/2000 08:04:27 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 21 Jul 2000 20:48:20 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm not certain if the intent of the MPAA and the studios in pushing through DMCA was only to make commercial devices illegal. The home copying and recording is something they don't like at all. [It's THEFT. its like a lock etc etc]. I think the whole thing is an attempt to create a trust in such a way that they can get around Betamax and the Home recording act. Chris Moseng @eon.law.harvard.edu on 07/21/2000 06:36:45 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] illegal ideas Eric Eldred wrote: > Judge Kaplan has been groping, I think, in all this testimony > to try to figure out just what to do. [...] Well summed up, Eric. It's nice to have the forest pointed out us, blinded by the trees we've planted. It brings up another common issue (probably more clearly than I'm going to butcher now). If Kaplan determines DeCSS illegal under 1201, there is a clear path to a challenge to 1201 on constitutional grounds. I think the law, despite its name, sounds as if it was written with a world of physical objects in mind. Banning a device or a box is a universe apart from banning an idea or speech. So either 1201 intends to control commercial distribution of actual boxes that had the sole purpose of circumventing access controls (power from the commerce clause), or it's got some real consitutional problems. So maybe Kaplan offers the MPAA a damned-if-you-do proposal: Criminalize DeCSS and other software like it, and risk losing your entire law... Or realize that this is not the battle to fight. I believe the studios have painted themselves into this corner, and even the judge can't airlift them out. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 21 23:53:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA02757 for dvd-discuss-outgoing; Fri, 21 Jul 2000 23:53:13 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA02754 for ; Fri, 21 Jul 2000 23:53:11 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P939>; Fri, 21 Jul 2000 23:57:16 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] fact on DVD player to bring in Date: Fri, 21 Jul 2000 23:57:08 -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've been trying to think of any facts that the defense should be certain to get into the record. I really think that the authority arguments point to a strong attack. Garbus as already asked on cross if Time Warner authorizes people to play on unlicensed players, and the answer is no. Lets get in the fine print from a DVD player, that says authorization does not come with the player. Can we? Can some witness buy a DVD player and bring it into court, open it up and read the fine print? That seems to be one of the key facts. Time Warner doesn't authorize you to play on an unlicensed player -- but they cannot do this. Kaplan already commented on that...there is no contract with the consumer. Thus, the place where authorization must come from is the sale of physical media. Thus, the application of a process with the authority of the copyright owner cannot be CSS decryption. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 02:02:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA05859 for dvd-discuss-outgoing; Sat, 22 Jul 2000 02:02:08 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA05856 for ; Sat, 22 Jul 2000 02:01:55 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id CAA09043 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 02:03:50 -0400 Date: Sat, 22 Jul 2000 02:03:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722020345.D8759@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com>; from Ray@clearway.com on Fri, Jul 21, 2000 at 11:57:08PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. Another one occurs to me. Refresh my memory but doesn't the DMCA require something like "commercial or personal financial gain" before there is any criminal action? I mean the MPAA could have argued, without invoking the DMCA, that there was copyright infringement or just contributory copyright infringement, and that consequently they suffered X billions of dollars in damages. But they didn't. So now if they rely on the DMCA one has to wonder why they never introduced any evidence as to motive or any commerical copying or even any personal financial gain by anybody. Nor can they use the NET act since they already disclaimed any role of DeCSS in the Internet transfers. The only way the Internet is involved is in the hyperlinks. But 2600 is not involved in any copying here, any more than The New York Times is. So the defense might well wish to introduce some testimony of its own about the motives of Goldstein and LiViD and Johansen and any others they need to call, and show that commerical or personal financial gain was not a motive at all. This might require revealing a little of the finances of 2600. And some evidence as to the ridiculous expense required in copying a DVD, using current methods other than a stamping factory, might also be provided. If Kaplan refuses to hear any of this testimony it should warrant an appeal and possible reversal or remand. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 05:50:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA11628 for dvd-discuss-outgoing; Sat, 22 Jul 2000 05:50:56 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA11625 for ; Sat, 22 Jul 2000 05:50:52 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id KAA12736 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 10:47:33 +0100 Date: Sat, 22 Jul 2000 10:47:33 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722104733.A12685@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com>; from Leland Ray on Fri, Jul 21, 2000 at 11:57:08PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. > > > I really think that the authority arguments point to a strong > attack. Garbus as already asked on cross if Time Warner authorizes > people to play on unlicensed players, and the answer is no. > > Lets get in the fine print from a DVD player, that says > authorization does not come with the player. Can we? Can > some witness buy a DVD player and bring it into court, open it > up and read the fine print? > If the consumer is only authorized to play a DVD disk on cetain players, shouldn't that be spelled out on the packaging of the disk itself? How can a consumer be expected to know whether or not his player is authorised to play a specific disk, since player keys can be revoked? Shouldn't the consumer be made aware of the authorization attached to each DVD disk at the point of sale? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 10:22:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA17224 for dvd-discuss-outgoing; Sat, 22 Jul 2000 10:22:58 -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 KAA17221 for ; Sat, 22 Jul 2000 10:22:57 -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:2.21) with ESMTP id KAA29097 for ; Sat, 22 Jul 2000 10:22:13 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA00269; Sat, 22 Jul 2000 10:22:11 -0400 (EDT) Date: Sat, 22 Jul 2000 10:22:11 -0400 (EDT) Message-Id: <200007221422.KAA00269@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722020345.D8759@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722020345.D8759@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > > > I've been trying to think of any facts that the defense should > > be certain to get into the record. > > Another one occurs to me. Refresh my memory but doesn't > the DMCA require something like "commercial or personal > financial gain" before there is any criminal action? This isn't a criminal case. It's a civil action, and they're asking for injunctive relief. (17 USC 1203 allows them to recover damages as well, but if they were ever asking for that, then they presumably gave up on it when they stipulated that they were not aware of a single case in which DeCSS was used to prepare a movie for distribution over the net). You're right about the requirements for a criminal action (17 USC 1204), but in this case, they just don't apply. > So the defense might well wish to introduce some testimony > of its own about the motives of Goldstein and LiViD and > Johansen and any others they need to call, and show that > commerical or personal financial gain was not a motive at > all. They've done so wrt Johansen (who was, I believe, called as a defense witness out of order); the potential witnesses listed at the end of the Thursday transcript include the head of the LiViD group, and Chris DiBona of VA Linux. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 10:46:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA18464 for dvd-discuss-outgoing; Sat, 22 Jul 2000 10:46:02 -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 KAA18461 for ; Sat, 22 Jul 2000 10:46:00 -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:2.21) with ESMTP id KAA00296 for ; Sat, 22 Jul 2000 10:45:15 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA00351; Sat, 22 Jul 2000 10:45:14 -0400 (EDT) Date: Sat, 22 Jul 2000 10:45:14 -0400 (EDT) Message-Id: <200007221445.KAA00351@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722104733.A12685@ramtop.demon.co.uk> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes: > If the consumer is only authorized to play a DVD disk on cetain > players, shouldn't that be spelled out on the packaging of the disk > itself? How can a consumer be expected to know whether or not his > player is authorised to play a specific disk, since player keys can > be revoked? Shouldn't the consumer be made aware of the > authorization attached to each DVD disk at the point of sale? The consumer doesn't have to be aware of this, on the plaintiffs' view, because unauthorized players aren't supposed to *exist*. Remember their argument, once again: 1) The statute says "decryption ... without the authority of the copyright owner" is circumvention (17 USC 1201(a)(3)(A)). 2) DeCSS decrypts a work. 3) They haven't authorized it, or the use of it. 4) Its use is circumvention, QED. Therefore, any distribution of DeCSS, or any other "unauthorized" CSS implementation, falls under the trafficing bans of 1201, and a consumer shouldn't ever be able to get their hands on it. If you'd like to see this in their words, and not mine, Mr. Gold put it pretty much that way at the pretrial hearing: Circumvent means to descramble, and that's what DeCSS does. A technological measure effectively controls the access here to do the protected work and CSS is such a measure and it's designed to control access to our copyrighted works. Because CSS is an encryption technology, you've got to have a software key to open it, so CSS qualifies as an access control measure. And all of the statutory requirements are met, and defendants are clearly violating them. Also, Kaplan has stated in court that it's "perfectly obvious" that "there is no contract between Warner [or any other studio] and the ultimate consumer" (on the 19th, if you'd like to find it in the transcripts). He's just not sure it matters --- presumably because he thinks the plaintiffs' argument, or something like it, may be valid. (Of course, if the law requires a contract to confer authority to decrypt, as the plaintiffs argue, then that ought to be with the party performing the decryption. Which is a bit of a problem for the above line of argument, since it's "perfectly obvious" that they don't *have* a contract with the party performing the decryption --- the home viewer, who put the disk in, say, their Panasonic player, pushed the "play" button, and caused decryption to commence. They just have a contract with whoever manufactured the viewer's equipment. That contract allows Panasonic to decrypt DVDs --- but Panasonic isn't decrypting the DVD in this case; the viewer is. That's one reason not to believe the plaintiffs' theory, and the only way that I, at least, can manage to read any "consumer notification" requirement into the law --- but note that the judge, so far, seems to be going along with the plaintiffs' argument on this, warts and all). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:02:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA18716 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:02:25 -0400 Received: from www.neophile.net ([195.224.237.7]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA18713 for ; Sat, 22 Jul 2000 11:02:09 -0400 Received: from control2.neophile.net ([195.224.237.10]) by www.neophile.net (8.9.3/8.9.3) with ESMTP id QAA20966 for ; Sat, 22 Jul 2000 16:50:19 +0100 Message-Id: <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> X-Sender: hammer@neophile.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 22 Jul 2000 16:02:39 +0100 To: dvd-discuss@eon.law.harvard.edu From: Hammer Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <200007221445.KAA00351@soggy-fibers.ai.mit.edu> References: <20000722104733.A12685@ramtop.demon.co.uk> <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> 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 Can I contribute something here. I have recently bought a new standalone DVD player with the following features:- - No Macrovision Protection. - No Region protection - An onboard NTSC>PAL converter. I have tested this player out to see exactly what it can do - I can (and have) recorded Region 1 DVDs (NTSC) to my PAL VCR - Copies are perfect, in colour, and with no Macrovision wobbliness. The point I wish to bring up is this :- Now if the CSS licencing is so strict how can a player like this slip through and still have all the keys to allow playback of CSS encrypted disks? I should point out that this player is not modified in anyway, but straight out of the box does the above. Unless I read it all wrong, the manufacturers have to agree to the licencing terms to include stuff like region protection etc. No doubt someone might know ? Slamdunk At 10:45 22/07/2000 -0400, Robert S. Thau wrote: >Phil Harrison writes: > > If the consumer is only authorized to play a DVD disk on cetain > > players, shouldn't that be spelled out on the packaging of the disk > > itself? How can a consumer be expected to know whether or not his > > player is authorised to play a specific disk, since player keys can > > be revoked? Shouldn't the consumer be made aware of the > > authorization attached to each DVD disk at the point of sale? > >The consumer doesn't have to be aware of this, on the plaintiffs' >view, because unauthorized players aren't supposed to *exist*. >Remember their argument, once again: > > 1) The statute says "decryption ... without the authority of > the copyright owner" is circumvention (17 USC 1201(a)(3)(A)). > 2) DeCSS decrypts a work. > 3) They haven't authorized it, or the use of it. > 4) Its use is circumvention, QED. > >Therefore, any distribution of DeCSS, or any other "unauthorized" CSS >implementation, falls under the trafficing bans of 1201, and a >consumer shouldn't ever be able to get their hands on it. > >If you'd like to see this in their words, and not mine, Mr. Gold put >it pretty much that way at the pretrial hearing: > > Circumvent means to descramble, and that's what DeCSS does. A > technological measure effectively controls the access here to do the > protected work and CSS is such a measure and it's designed to control > access to our copyrighted works. Because CSS is an encryption > technology, you've got to have a software key to open it, so CSS > qualifies as an access control measure. And all of the statutory > requirements are met, and defendants are clearly violating them. > >Also, Kaplan has stated in court that it's "perfectly obvious" that >"there is no contract between Warner [or any other studio] and the >ultimate consumer" (on the 19th, if you'd like to find it in the >transcripts). He's just not sure it matters --- presumably because he >thinks the plaintiffs' argument, or something like it, may be valid. > >(Of course, if the law requires a contract to confer authority to >decrypt, as the plaintiffs argue, then that ought to be with the party >performing the decryption. Which is a bit of a problem for the above >line of argument, since it's "perfectly obvious" that they don't >*have* a contract with the party performing the decryption --- the >home viewer, who put the disk in, say, their Panasonic player, pushed >the "play" button, and caused decryption to commence. They just have >a contract with whoever manufactured the viewer's equipment. That >contract allows Panasonic to decrypt DVDs --- but Panasonic isn't >decrypting the DVD in this case; the viewer is. > >That's one reason not to believe the plaintiffs' theory, and the only >way that I, at least, can manage to read any "consumer notification" >requirement into the law --- but note that the judge, so far, seems to >be going along with the plaintiffs' argument on this, warts and all). > >rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:27:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19194 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:27:26 -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 LAA19191 for ; Sat, 22 Jul 2000 11:27:25 -0400 Received: from ip46.bedford3.ma.pub-ip.psi.net ([38.32.11.46]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13G1Al-0006G5-00 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 11:26:40 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorization Date: Sat, 22 Jul 2000 11:20:28 -0400 Message-ID: References: <20000721225449.C8759@eldritchpress.org> In-Reply-To: <20000721225449.C8759@eldritchpress.org> 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 LAA19192 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >Now, the authorization from the copyright holder to use the >content has to come at the time of purchase of the DVD. >There is no other way it could except at first sale. And >this authorization comes complete with the ability to use >the content, to play the disc, and to decrypt the content, >as necessary. (We will leave aside for a moment the question >of fair use.) If not, there is no sense in authorization. This is of course the logical conclusion, leaving aside the omerta aspects of the CSS license. But Kaplan has suggested that the buyer only buys a piece of plastic (let's call that polycarbonate laminated over foil.) What happens if the operator was sleeping, the replicating machine burped and the disc was never pressed (ie. no movie on this one?) Can the buyer ask for a refund if there is no contract or agreement to a copy of the content on the disc? Isn't that a point of copyright, that you can buy a copy? Oh, that's right. An international cartel is sitting on top of our copy. >Now, the studios seem to be claiming that nobody is authorized >to do that except by using the access control programs they >supply, and that they cross license with DVD-CCA. [...] >Presumably the question would be different if the user of >DeCSS did not possess the physical disc. But DeCSS works >exactly that way--you put the physical disc in the drive. >The disc comes with the copyright holder's authorization. We know the disc is authorized. But the buyer isn't. Perhaps the disc is authorized to play the buyer? >Now, it may be true that the disc player is not authorized >by DVD-CCA. But where is that covered by DMCA? The law >only refers to the copyright holder's authorization, not >some sort of patent or cross license among disc player >manufacturers. The whole authorization scam is a round robin that we can't know because the paper has burned in their palm. Those who do know live with the fishes. Don't ask; don't tell. [...] >If not, then MPAA and DVD-CCA are trying to misuse copyright >law in restraint of trade, and should pay damages and >attorney fees to defendants in consequence. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:28:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19293 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:28:43 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA19245 for ; Sat, 22 Jul 2000 11:28:40 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id QAA14712 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 16:29:28 +0100 Date: Sat, 22 Jul 2000 16:29:28 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722162928.A14663@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <200007221445.KAA00351@soggy-fibers.ai.mit.edu>; from Robert S. Thau on Sat, Jul 22, 2000 at 10:45:14AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 10:45:14AM -0400, Robert S. Thau wrote: > Phil Harrison writes: > > If the consumer is only authorized to play a DVD disk on cetain > > players, shouldn't that be spelled out on the packaging of the disk > > itself? How can a consumer be expected to know whether or not his > > player is authorised to play a specific disk, since player keys can > > be revoked? Shouldn't the consumer be made aware of the > > authorization attached to each DVD disk at the point of sale? > > The consumer doesn't have to be aware of this, on the plaintiffs' > view, because unauthorized players aren't supposed to *exist*. > Remember their argument, once again: > But surely the authority to decrypt is granted in the form of the player keys that are on each specific disk. When a consumer buys a DVD player, are there any guarantees that the player keys for that player will be included on all future DVD's that are released? I was under the impression that player keys could be revoked if the manufacturer did not meet the terms of the agreement with the DVDCAA, which means that authority to decrypt is not granted to the consumer when they purchesa the player, it's granted when they purchase the disk. > 1) The statute says "decryption ... without the authority of > the copyright owner" is circumvention (17 USC 1201(a)(3)(A)). > 2) DeCSS decrypts a work. > 3) They haven't authorized it, or the use of it. > 4) Its use is circumvention, QED. > I appreciate that, but if authority to decrypt is determined by the player keys on the disk, then shouldn't they be informing the consumer which players have keys on each individual disk so they know whether their player is authorised to play that specific disk? > Also, Kaplan has stated in court that it's "perfectly obvious" that > "there is no contract between Warner [or any other studio] and the > ultimate consumer" (on the 19th, if you'd like to find it in the > transcripts). He's just not sure it matters --- presumably because he > thinks the plaintiffs' argument, or something like it, may be valid. > > (Of course, if the law requires a contract to confer authority to > decrypt, as the plaintiffs argue, then that ought to be with the party > performing the decryption. Which is a bit of a problem for the above > line of argument, since it's "perfectly obvious" that they don't > *have* a contract with the party performing the decryption --- the > home viewer, who put the disk in, say, their Panasonic player, pushed > the "play" button, and caused decryption to commence. They just have > a contract with whoever manufactured the viewer's equipment. That > contract allows Panasonic to decrypt DVDs --- but Panasonic isn't > decrypting the DVD in this case; the viewer is. > Indeed, and what guarantee does the consumer have that the Panasonic player keys will be included on all future DVD releases? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:35:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19561 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:35:00 -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 LAA19558 for ; Sat, 22 Jul 2000 11:34:59 -0400 Message-ID: <20000722153344.17463.qmail@web510.mail.yahoo.com> Received: from [64.81.25.36] by web510.mail.yahoo.com; Sat, 22 Jul 2000 08:33:44 PDT Date: Sat, 22 Jul 2000 08:33:44 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] authorization 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 Eldred wrote: > DMCA refers only to authorization from the copyright holder. > But clearly there is another sort of authorization that is > being confused with that in this case. I mean the authorization > from DVD-CCA to reverse engineer their software, in order to > make a DVD player for Linux. The two authorizations are very > different. Yes, exactly. The act of descrambling is the only thing that the statue give authority over to the copyright holder, and even this is subject to the exceptions provided by 1201(f) and (g). > Now, the authorization from the copyright holder to use the > content has to come at the time of purchase of the DVD. Right, since this is when the title key is purchased. > Now, the studios seem to be claiming that nobody is authorized > to do that except by using the access control programs they > supply, and that they cross license with DVD-CCA. > But there doesn't seem to be anything in DMCA that requires > this second license or authorization. The only feature of > DMCA that applies is the proscription against "circumventing > access control." Exactly. Distribution of descramblers is not a right given to the copyright holder. The DMCA only gives them a CAUSE OF ACTION if they are damaged because a descrambler is primarily for circumvention in one of three specific ways, and even then there are exceptions. Subtle, but HUGE difference. Either Congress intended to created a "Second Sale" of the access authorization or they intended this to allow another avenue for "First Sale". > Now, it may be true that the disc player is not authorized > by DVD-CCA. But where is that covered by DMCA? The law > only refers to the copyright holder's authorization, not > some sort of patent or cross license among disc player > manufacturers. Exactly. In fact, the player really only provides access to the disc key. The disc key is used to get the title key, which is used to descramble the actual movie. Since the disc key is not a copyrightable work, the player program doesn't have any DMCA protection at all. Sure, it uses the title key once it's got it, but it doesn't come with it. > Anyway, there has been no testimony in this case that DeCSS > is a violation of DVD-CCA's intellectual property. There has > only been testimony that DeCSS might potentially damage the > future profit stream of movie studios. Right. It's a "sweat of the brow" argument that was unanimously rejected by the Supreme Court in Feist. > Further, the studios allege that their copyrighted content > is being distributed on the Internet as a result of DeCSS. > But DeCSS is no more responsible for this possible infringement > than is MP4 or FTP. It is neither necessary nor sufficient. > The MPAA has stipulated they have no evidence of DeCSS being > used in this way. Right, but they failed to prove any connection of this to DeCSS, while the defense proved there were 9 other ways to do it. Also, it's DeCSS + DivX that makes it theoretically possible, but 2600 doesn't have any connection to DivX. This wasn't even known when they were posting DeCSS, as Schumann testified and our searches of Deja confirm. > If not, then MPAA and DVD-CCA are trying to misuse copyright > law in restraint of trade, and should pay damages and > attorney fees to defendants in consequence. Right, the no reverse engineering restrictions in the DVD-CCA licence is one such misuse. Another is the exploiting of movie copyrights to assist in collusion by the studios to force this licence on anyone who wants to create a player. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:49:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19651 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:49:03 -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 LAA19647 for ; Sat, 22 Jul 2000 11:48:56 -0400 Message-ID: <20000722154728.23963.qmail@web511.mail.yahoo.com> Received: from [64.81.25.36] by web511.mail.yahoo.com; Sat, 22 Jul 2000 08:47:28 PDT Date: Sat, 22 Jul 2000 08:47:28 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] fact on DVD player to bring in 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 agree completely. All of the licences should go in to the factual record, especiallly the ones that have antitrust problems. It's pretty important that these go in. The licences that ought to go into evidence are: 1. An example of a player EULA, say Xing's - Shows players don't grant access to consumers - Shows misuse of copyright through no RE clause 2. The DVD-CCA licence for "authorized" players - Shows misuse of copyright 3. The DVD movie licence - Shows consumers aren't alerted to Plaintiff's authorization model - Grants "home viewing" or "home use" or similar 4. DeCSS's licence, the GPL - Shows that all third parties are potential reverse engineers - Shows (with cost free distribution) that DeCSS is non-commerical --- Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. > > > I really think that the authority arguments point to a strong > attack. Garbus as already asked on cross if Time Warner authorizes > people to play on unlicensed players, and the answer is no. > > Lets get in the fine print from a DVD player, that says > authorization does not come with the player. Can we? Can > some witness buy a DVD player and bring it into court, open it > up and read the fine print? > > That seems to be one of the key facts. Time Warner doesn't > authorize you to play on an unlicensed player -- but they cannot > do this. Kaplan already commented on that...there is no contract > with the consumer. > > > Thus, the place where authorization must come from is the > sale of physical media. Thus, the application of a process with the > authority of the copyright owner cannot be CSS decryption. > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 11:56:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA19741 for dvd-discuss-outgoing; Sat, 22 Jul 2000 11:56:02 -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 LAA19738 for ; Sat, 22 Jul 2000 11:55:56 -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:2.21) with ESMTP id LAA03788 for ; Sat, 22 Jul 2000 11:55:08 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA00602; Sat, 22 Jul 2000 11:55:05 -0400 (EDT) Date: Sat, 22 Jul 2000 11:55:05 -0400 (EDT) Message-Id: <200007221555.LAA00602@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722162928.A14663@ramtop.demon.co.uk> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes: > But surely the authority to decrypt is granted in the form of the > player keys that are on each specific disk. When a consumer buys a > DVD player, are there any guarantees that the player keys for that > player will be included on all future DVD's that are released? No; there have been claims on this list that the Xing player key has already been revoked in this fashion. No problem for the plaintiffs, though; they have chosen to no longer authorize Xing, in the same way that they have chosen never to authorize DeCSS. Consumers never have to be bothered with notifications --- the technical protection measure that comprises CSS just does what the copyright holders want. Or, so goes the argument. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 12:24:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19992 for dvd-discuss-outgoing; Sat, 22 Jul 2000 12:24:38 -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 MAA19989 for ; Sat, 22 Jul 2000 12:24:31 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13G23x-0002Rn-00; Sat, 22 Jul 2000 18:23:41 +0200 Received: from localhost by sites.inka.de with local id 13G23z-0007i4-00; Sat, 22 Jul 2000 18:23:43 +0200 Date: Sat, 22 Jul 2000 18:23:43 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722182342.A29448@inka.de> References: <20000722104733.A12685@ramtop.demon.co.uk> <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk>; from hammer@neophile.net on Sat, Jul 22, 2000 at 04:02:39PM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 04:02:39PM +0100, Hammer wrote: > Can I contribute something here. > > I have recently bought a new standalone DVD player with the following > features:- > > - No Macrovision Protection. > - No Region protection > - An onboard NTSC>PAL converter. > > I have tested this player out to see exactly what it can do - I can (and > have) recorded Region 1 DVDs (NTSC) to my PAL VCR - Copies are perfect, in > colour, and with no Macrovision wobbliness. > > The point I wish to bring up is this :- Now if the CSS licencing is so > strict how can a player like this slip through and still have all the keys > to allow playback of CSS encrypted disks? I should point out that this > player is not modified in anyway, but straight out of the box does the above. > > Unless I read it all wrong, the manufacturers have to agree to the > licencing terms to include stuff like region protection etc. Does it play MP3s? If so it's almost certainly a variant/rebadge of the Apex player, which is "under investigation" by the MPAA because of just the features you mention. The player appears to be is an assembly of standard parts: an IDE DVD drive intended for a comuter (that part is true, I've taken the lid off mine), a standard MPEG decoder board and a cheap PSU. I suspect - this is purely hypothesis - that while the individual parts have been sanctioned by the DVDCAA/MPAA, but the combination of them in this player has not. Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 12:28:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20103 for dvd-discuss-outgoing; Sat, 22 Jul 2000 12:28:58 -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 MAA20100 for ; Sat, 22 Jul 2000 12:28:57 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id KAA10861 for ; Sat, 22 Jul 2000 10:28:12 -0600 Date: Sat, 22 Jul 2000 10:28:11 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I thought the "S" in RSA designed an optical sieve that trivializes cracking RSA. Basically, it reduces the number of keys you have to try to a manageable number... On Fri, 21 Jul 2000, Sampo A Syreeni wrote: > On 20 Jul 2000, David A. Wagner wrote: > > >Yes, and I have a gripe about statements made, I think, at the trial: that > >"every encryption algorithm will be broken, sooner or later". That's a > >common misperception, but there are very good reasons to believe that it's > >just not true. > > Not in the least part precipitated by half-witted depictions of crypto in > popular movies and series etc. You know, the kind found in 'Sneakers' and > 'La Femme Nikita': crypto absent math. > > (Of course, there's a kernel of truth in there -- namely, > >that designing secure encryption algorithms is very hard to get right -- > >but that's very different, and in this case, the difference is important!) > > It's worth noting that RSA is still very much unbroken, even if it isn't a > stream cipher. > > Sampo Syreeni , aka decoy, student/math/Helsinki university > -- I can be immature if I want to, because I'm mature enough to make my own decisions. Who is John Galt? galt@inconnu.isu.edu From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 12:36:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20184 for dvd-discuss-outgoing; Sat, 22 Jul 2000 12:36:42 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20181 for ; Sat, 22 Jul 2000 12:36:39 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id RAA15251 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 17:37:19 +0100 Date: Sat, 22 Jul 2000 17:37:19 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722173719.A15227@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <200007221555.LAA00602@soggy-fibers.ai.mit.edu>; from Robert S. Thau on Sat, Jul 22, 2000 at 11:55:05AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 11:55:05AM -0400, Robert S. Thau wrote: > Phil Harrison writes: > > But surely the authority to decrypt is granted in the form of the > > player keys that are on each specific disk. When a consumer buys a > > DVD player, are there any guarantees that the player keys for that > > player will be included on all future DVD's that are released? > > No; there have been claims on this list that the Xing player key has > already been revoked in this fashion. No problem for the plaintiffs, > though; they have chosen to no longer authorize Xing, in the same way > that they have chosen never to authorize DeCSS. Consumers never have > to be bothered with notifications --- the technical protection measure > that comprises CSS just does what the copyright holders want. > So how can the plaitiffs claim that the consumer is only granted permission to play a DVD on an authorised player if the consumer is not given any indication whether their player is authorised for that specific DVD? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 12:51:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20273 for dvd-discuss-outgoing; Sat, 22 Jul 2000 12:51:32 -0400 Received: from redbus.co.uk (mailserver.redbus.co.uk [193.254.31.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20270 for ; Sat, 22 Jul 2000 12:51:31 -0400 Received: from [195.224.237.10] (HELO control2.dircon.co.uk) by redbus.co.uk (CommuniGate Pro SMTP 3.3b5) with ESMTP id 1161206 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 17:50:46 +0100 Message-Id: <4.3.2.7.2.20000722174711.00b01120@popmail.dircon.co.uk> X-Sender: gibbed@popmail.dircon.co.uk X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 22 Jul 2000 17:52:07 +0100 To: dvd-discuss@eon.law.harvard.edu From: JerryH Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722182342.A29448@inka.de> References: <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> <20000722104733.A12685@ramtop.demon.co.uk> <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good points Sham, no mine does not play MP3s, but its successor does:- www.smartproducts.co.uk - SmartDVD 2000 (the 3000 is the present model, and that does play MP3s) It would seem to me from my hunting around on the net, that there are quite a few of this type of machine in existence - I dont see how the DVD CCA will be able to keep up with the ever increasing numbers of these types of players coming on to the market. Slamdunk At 18:23 22/07/2000 +0200, Sham Gardner wrote: >Does it play MP3s? If so it's almost certainly a variant/rebadge of the Apex >player, which is "under investigation" by the MPAA because of just the >features you mention. >The player appears to be is an assembly of standard parts: an IDE DVD drive >intended for a comuter (that part is true, I've taken the lid off mine), a >standard MPEG decoder board and a cheap PSU. I suspect - this is purely >hypothesis - that while the individual parts have been sanctioned by the >DVDCAA/MPAA, but the combination of them in this player has not. > >Sham > >-- >Constantly updated links to coverage of the New York case commencing >on July 17th 2000: >http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 13:03:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA20515 for dvd-discuss-outgoing; Sat, 22 Jul 2000 13:03:07 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA20512 for ; Sat, 22 Jul 2000 13:03:06 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA29032 for ; Sat, 22 Jul 2000 12:02:04 -0500 Message-ID: <3979D19A.DF4CA28F@mninter.net> Date: Sat, 22 Jul 2000 11:53:46 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Inside's Interview with Corley 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.inside.com/story/Story_Cached/0,2770,7128_10,00.html A rather argumentative interview against which Corley stands up well. Right after the esteemed plaintiffs had their crack at him. Quite a lot of flack to take for posting a GPLed exe on your web page, don't you think? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:06:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22128 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:06:05 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22123 for ; Sat, 22 Jul 2000 15:06:03 -0400 Received: by aero.org id <17119-7>; Sat, 22 Jul 2000 12:05:07 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa06635; Sat Jul 22 12:04:58 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 12:04:44 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 12:04:44 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 12:05:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's an interesting Tidbit about Time Warner. A friend told me that Time Warner owns the biggest DVD manufacturing plant in the world and is working at full capacity. Also, they only contract to other plants when they need to but not enough that their rivals can grow into competitors. So if this is true....Time Warner owns the media (no pun intended). Time Warner Owns the Copyrights. Time Warner is part of the consortium that controls the CSS that controls who makes DVD players that control what and how you watch their movies...control from end to end.....IANAL but from my understanding of business law that's a violation of the Anti-Trust laws. The parallels between this case and the Anti-Trust actions against the studios after WWII are striking (until that time the studios also owned theater chains ). The courts ruled that the studios cannot control the making, distribution, and showing of films. They were required to divest themselves of the theaters. Different times. Different approach. Different method. It would be ironic if the DoJ started Anti-Trust against them and cited the previous Anti-Trust action as precedence. Leland Ray @eon.law.harvard.edu on 07/21/2000 08:53:22 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: [dvd-discuss] fact on DVD player to bring in I've been trying to think of any facts that the defense should be certain to get into the record. I really think that the authority arguments point to a strong attack. Garbus as already asked on cross if Time Warner authorizes people to play on unlicensed players, and the answer is no. Lets get in the fine print from a DVD player, that says authorization does not come with the player. Can we? Can some witness buy a DVD player and bring it into court, open it up and read the fine print? That seems to be one of the key facts. Time Warner doesn't authorize you to play on an unlicensed player -- but they cannot do this. Kaplan already commented on that...there is no contract with the consumer. Thus, the place where authorization must come from is the sale of physical media. Thus, the application of a process with the authority of the copyright owner cannot be CSS decryption. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:21:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22601 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:21:25 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22598 for ; Sat, 22 Jul 2000 15:21:23 -0400 Received: by aero.org id <17123-2>; Sat, 22 Jul 2000 12:20:28 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa07395; Sat Jul 22 12:20:11 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 12:19:34 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 12:19:33 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 12:20:18 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred @eon.law.harvard.edu on 07/21/2000 11:03:07 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. Another one occurs to me. Refresh my memory but doesn't the DMCA require something like "commercial or personal financial gain" before there is any criminal action? Correct Criminal offenses and penalties `(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain-- `(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and `(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense. How does this stack up against other crimes such as murder, robbery, torture, savings and loan gutting? Eric Eldred @eon.law.harvard.edu on 07/21/2000 11:03:07 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. Another one occurs to me. Refresh my memory but doesn't the DMCA require something like "commercial or personal financial gain" before there is any criminal action? I mean the MPAA could have argued, without invoking the DMCA, that there was copyright infringement or just contributory copyright infringement, and that consequently they suffered X billions of dollars in damages. But they didn't. So now if they rely on the DMCA one has to wonder why they never introduced any evidence as to motive or any commerical copying or even any personal financial gain by anybody. Nor can they use the NET act since they already disclaimed any role of DeCSS in the Internet transfers. The only way the Internet is involved is in the hyperlinks. But 2600 is not involved in any copying here, any more than The New York Times is. So the defense might well wish to introduce some testimony of its own about the motives of Goldstein and LiViD and Johansen and any others they need to call, and show that commerical or personal financial gain was not a motive at all. This might require revealing a little of the finances of 2600. And some evidence as to the ridiculous expense required in copying a DVD, using current methods other than a stamping factory, might also be provided. If Kaplan refuses to hear any of this testimony it should warrant an appeal and possible reversal or remand. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:24:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22689 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:24:41 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22686 for ; Sat, 22 Jul 2000 15:24:40 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY4003QV5TPL0@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 12:22:37 -0700 (PDT) Date: Sat, 22 Jul 2000 12:38:57 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] fact on DVD player to bring in In-reply-to: <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY4003QW5TPL0@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: <200007221445.KAA00351@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Can I contribute something here. > > I have recently bought a new standalone DVD player with the following > features:- > > - No Macrovision Protection. > - No Region protection > - An onboard NTSC>PAL converter. > > I have tested this player out to see exactly what it can do - I can (and > have) recorded Region 1 DVDs (NTSC) to my PAL VCR - Copies are perfect, in > colour, and with no Macrovision wobbliness. Really?!?! Well in that case all that remain is to compare the quality of the video taped results to that of DivX and the whole "DeCSS enables Napster like distribution" argument goes down the tubes. (I.e., the VCR to video capture step is somewhat more well known.) > The point I wish to bring up is this :- Now if the CSS licencing is so > strict how can a player like this slip through and still have all the keys > to allow playback of CSS encrypted disks? I should point out that this > player is not modified in anyway, but straight out of the box does the above. > > Unless I read it all wrong, the manufacturers have to agree to the > licencing terms to include stuff like region protection etc. No idea. I actually thought that the use of Macrovision was absolutely enforced. Jan Johansen's testimony that Norwegian DVD player vendors work around their region code locking by default is indicative that this rule may not be being enforced. (Online vendors of DVD players would also have severe problems with inventory and just the need to translate a country to a precise region.) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:32:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA22831 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:32:38 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA22828 for ; Sat, 22 Jul 2000 15:32:36 -0400 Received: by aero.org id <17092-5>; Sat, 22 Jul 2000 12:31:48 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCAAa07615; Sat Jul 22 12:31:39 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 12:23:45 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 12:23:44 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 12:31:46 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Seemingly, the DVDs don't even play in different players either check out http://www.dvddemystified.com/dvdfaq.html#4.3.1 section [1.41] Why doesn't disc X work in player Y? Phil Harrison @eon.law.harvard.edu on 07/22/2000 02:51:38 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Fri, Jul 21, 2000 at 11:57:08PM -0400, Leland Ray wrote: > > I've been trying to think of any facts that the defense should > be certain to get into the record. > > > I really think that the authority arguments point to a strong > attack. Garbus as already asked on cross if Time Warner authorizes > people to play on unlicensed players, and the answer is no. > > Lets get in the fine print from a DVD player, that says > authorization does not come with the player. Can we? Can > some witness buy a DVD player and bring it into court, open it > up and read the fine print? > If the consumer is only authorized to play a DVD disk on cetain players, shouldn't that be spelled out on the packaging of the disk itself? How can a consumer be expected to know whether or not his player is authorised to play a specific disk, since player keys can be revoked? Shouldn't the consumer be made aware of the authorization attached to each DVD disk at the point of sale? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:41:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24119 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:41:43 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA24112 for ; Sat, 22 Jul 2000 15:41:42 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P97R>; Sat, 22 Jul 2000 15:45:50 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E7C@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] how about a letter Date: Sat, 22 Jul 2000 15:45:48 -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 know, we all have spend the last n months beating these issues. The trial is at least half over, and there will be a decision relatively soon. Then there will be appeals. In the recent hearing on digital music, both Sen. Hatch and Sen. Leahy spent time talking about the DMCA and copyrights. DVDs were brought up in the hearing (see the quote I posted to the list). I think we should write a letter to the Senate Judiciary Committee bringing the issues in the trial, and the case itself to their attention. Our basic question should be, did you, as authors of the DMCA, intend for your law to be applied in cases like this one? Many of our arguments about tying, consumer notification, control of player market, use control vs access control, and authorization, I think are good points for Congress. What we could ask is -- could you clarify the DMCA through legislation if it is the case that you did not intend for large corporations to have control over individual speech? Even though we don't have a decision yet, the costs and fears associated from litigation has a large chilling effect. Even more, the development of a free Linux player, and a host of DVD standalone players that could be now manufactured from the DeCSS source code -- are not because of this litigation. In my cynical opinion, part of the reason for this suit and others is to delay DeCSS like applications long enough to release CSS2 or some additional TPM. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 15:54:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA24778 for dvd-discuss-outgoing; Sat, 22 Jul 2000 15:54:35 -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 PAA24775 for ; Sat, 22 Jul 2000 15:54:34 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id PAA10282; Sat, 22 Jul 2000 15:53:50 -0400 Date: Sat, 22 Jul 2000 15:53:50 -0400 From: Jim Bauer Message-Id: <200007221953.PAA10282@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: <200007221445.KAA00351@soggy-fibers.ai.mit.edu> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: >Phil Harrison writes: > > If the consumer is only authorized to play a DVD disk on cetain > > players, shouldn't that be spelled out on the packaging of the disk > > itself? How can a consumer be expected to know whether or not his > > player is authorised to play a specific disk, since player keys can > > be revoked? Shouldn't the consumer be made aware of the > > authorization attached to each DVD disk at the point of sale? > >The consumer doesn't have to be aware of this, on the plaintiffs' >view, because unauthorized players aren't supposed to *exist*. >Remember their argument, once again: They can stick their heads in the sand all they want, but unauthorized ones do exist. Also more will exist whenever a player key gets revoked. > 1) The statute says "decryption ... without the authority of > the copyright owner" is circumvention (17 USC 1201(a)(3)(A)). > 2) DeCSS decrypts a work. > 3) They haven't authorized it, or the use of it. > 4) Its use is circumvention, QED. How is the authorization transfered to owners of these so called "authorized" players? We already know from the trail that there is no contract between the copyright holders and the end consumber. They really can't authorize machines, can they? It would seems to me that authority is something that can only be given by or granted to *people*. Or is the real truth from the P's possition more in line with 'those we don't take to court or otherwise threaten are the only people that are authorized'. >Therefore, any distribution of DeCSS, or any other "unauthorized" CSS >implementation, falls under the trafficing bans of 1201, and a >consumer shouldn't ever be able to get their hands on it. > >If you'd like to see this in their words, and not mine, Mr. Gold put >it pretty much that way at the pretrial hearing: > > Circumvent means to descramble, and that's what DeCSS does. And that is what every DVD player does. > A > technological measure effectively controls the access here to do the > protected work and CSS is such a measure and it's designed to control > access to our copyrighted works. Because CSS is an encryption > technology, you've got to have a software key to open it, so CSS > qualifies as an access control measure. And all of the statutory > requirements are met, and defendants are clearly violating them. > >Also, Kaplan has stated in court that it's "perfectly obvious" that >"there is no contract between Warner [or any other studio] and the >ultimate consumer" (on the 19th, if you'd like to find it in the >transcripts). He's just not sure it matters --- presumably because he >thinks the plaintiffs' argument, or something like it, may be valid. > >(Of course, if the law requires a contract to confer authority to >decrypt, as the plaintiffs argue, then that ought to be with the party >performing the decryption. Which is a bit of a problem for the above >line of argument, since it's "perfectly obvious" that they don't >*have* a contract with the party performing the decryption --- the >home viewer, who put the disk in, say, their Panasonic player, pushed >the "play" button, and caused decryption to commence. They just have >a contract with whoever manufactured the viewer's equipment. That >contract allows Panasonic to decrypt DVDs --- but Panasonic isn't >decrypting the DVD in this case; the viewer is. > >That's one reason not to believe the plaintiffs' theory, and the only >way that I, at least, can manage to read any "consumer notification" >requirement into the law --- but note that the judge, so far, seems to >be going along with the plaintiffs' argument on this, warts and all). > >rst > -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:01:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24920 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:01:44 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24917 for ; Sat, 22 Jul 2000 16:01:42 -0400 Received: by aero.org id <17089-5>; Sat, 22 Jul 2000 13:00:51 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa08450; Sat Jul 22 13:00:43 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 12:51:21 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 12:51:20 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 13:00:47 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's an interesting point. The whole concept of being able to revoke player keys would seem to violate the Uniform Commercial Code Section 2-314 Goods to be merchantable must be at least such as (c) are fit for the ordinary purposes for which such goods are used; it seems obvious that the "ordinary purpose" of buying a DVD is to play it. So...If I buy a player and they revoke the keys then ANY DVD that they sell after revoking the keys cannot be played by the thousands of people who previously purchased them in good faith. It's not "fit for the ordinary purpose" Now try this hypothetical....suppose the player maker gets BACK into their good graces.Do they give him a New key so that now they have a bunch of disks that can't be played on the old players but only on the new ones? Or do they give him back the old key so that the disks sent out while the player maker was our of favor? If this happens three or four times what disks work on what machines and when do they work (e.g., model XX shipped between 11May2000 and 15May2000 will not work) could get to be a real nightmare to keep it all straight. >From a technical side, not only did they Botch the encryption but the key managment looks to be shoddy too. Phil Harrison @eon.law.harvard.edu on 07/22/2000 08:28:57 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Sat, Jul 22, 2000 at 10:45:14AM -0400, Robert S. Thau wrote: > Phil Harrison writes: > > If the consumer is only authorized to play a DVD disk on cetain > > players, shouldn't that be spelled out on the packaging of the disk > > itself? How can a consumer be expected to know whether or not his > > player is authorised to play a specific disk, since player keys can > > be revoked? Shouldn't the consumer be made aware of the > > authorization attached to each DVD disk at the point of sale? > > The consumer doesn't have to be aware of this, on the plaintiffs' > view, because unauthorized players aren't supposed to *exist*. > Remember their argument, once again: > But surely the authority to decrypt is granted in the form of the player keys that are on each specific disk. When a consumer buys a DVD player, are there any guarantees that the player keys for that player will be included on all future DVD's that are released? I was under the impression that player keys could be revoked if the manufacturer did not meet the terms of the agreement with the DVDCAA, which means that authority to decrypt is not granted to the consumer when they purchesa the player, it's granted when they purchase the disk. > 1) The statute says "decryption ... without the authority of > the copyright owner" is circumvention (17 USC 1201(a)(3)(A)). > 2) DeCSS decrypts a work. > 3) They haven't authorized it, or the use of it. > 4) Its use is circumvention, QED. > I appreciate that, but if authority to decrypt is determined by the player keys on the disk, then shouldn't they be informing the consumer which players have keys on each individual disk so they know whether their player is authorised to play that specific disk? > Also, Kaplan has stated in court that it's "perfectly obvious" that > "there is no contract between Warner [or any other studio] and the > ultimate consumer" (on the 19th, if you'd like to find it in the > transcripts). He's just not sure it matters --- presumably because he > thinks the plaintiffs' argument, or something like it, may be valid. > > (Of course, if the law requires a contract to confer authority to > decrypt, as the plaintiffs argue, then that ought to be with the party > performing the decryption. Which is a bit of a problem for the above > line of argument, since it's "perfectly obvious" that they don't > *have* a contract with the party performing the decryption --- the > home viewer, who put the disk in, say, their Panasonic player, pushed > the "play" button, and caused decryption to commence. They just have > a contract with whoever manufactured the viewer's equipment. That > contract allows Panasonic to decrypt DVDs --- but Panasonic isn't > decrypting the DVD in this case; the viewer is. > Indeed, and what guarantee does the consumer have that the Panasonic player keys will be included on all future DVD releases? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:04:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24993 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:04:44 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24990 for ; Sat, 22 Jul 2000 16:04:42 -0400 Received: by aero.org id <17105-3>; Sat, 22 Jul 2000 13:03:56 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa08641; Sat Jul 22 13:03:45 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 13:03:32 -0700 Subject: Re: [dvd-discuss] how about a letter To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 01:03:31 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 13:03:53 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes but Many letters. Consider this, the Commerce Department is asking for comments on the DMCA at the request of congress . That would be another place. Also, comments sent to the commerce department are PUBLICALLY posted and become part of the record as opposed to filed in the senator's office (circularly or otherwise). The link at the eff is http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html DATES: Comments must be received by August 4, 2000. Reply comments must be received by September 5, 2000. Leland Ray @eon.law.harvard.edu on 07/22/2000 12:45:48 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: [dvd-discuss] how about a letter You know, we all have spend the last n months beating these issues. The trial is at least half over, and there will be a decision relatively soon. Then there will be appeals. In the recent hearing on digital music, both Sen. Hatch and Sen. Leahy spent time talking about the DMCA and copyrights. DVDs were brought up in the hearing (see the quote I posted to the list). I think we should write a letter to the Senate Judiciary Committee bringing the issues in the trial, and the case itself to their attention. Our basic question should be, did you, as authors of the DMCA, intend for your law to be applied in cases like this one? Many of our arguments about tying, consumer notification, control of player market, use control vs access control, and authorization, I think are good points for Congress. What we could ask is -- could you clarify the DMCA through legislation if it is the case that you did not intend for large corporations to have control over individual speech? Even though we don't have a decision yet, the costs and fears associated from litigation has a large chilling effect. Even more, the development of a free Linux player, and a host of DVD standalone players that could be now manufactured from the DeCSS source code -- are not because of this litigation. In my cynical opinion, part of the reason for this suit and others is to delay DeCSS like applications long enough to release CSS2 or some additional TPM. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:06:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25180 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:06:14 -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 QAA25177 for ; Sat, 22 Jul 2000 16:06:13 -0400 Message-ID: <20000722200458.22718.qmail@web509.mail.yahoo.com> Received: from [64.81.25.36] by web509.mail.yahoo.com; Sat, 22 Jul 2000 13:04:58 PDT Date: Sat, 22 Jul 2000 13:04:58 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] how about a letter 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 --- Leland Ray wrote: > I think we should write a letter to the Senate Judiciary > Committee bringing the issues in the trial, and the case > itself to their attention. Our basic question should be, > did you, as authors of the DMCA, intend for your law to > be applied in cases like this one? > > Many of our arguments about tying, consumer notification, > control of player market, use control vs access control, > and authorization, I think are good points for Congress. I think these are good points for Congress. I should also remind everybody that there is another RFC from the the copyright office on the effect of the DMCA on first sale and on computer program copyrights. We should take advantage of this. Original comments are due 8/4/00, reply comments are due 9/5/00. http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html Antitrust implications arise if they did not intent to link transfer of the right of access to first sale. The question is "did Congress create a 'Second Sale' that can be tied to 'First Sale'?" Note the catch all at the end: 2.(b) Do you believe that hearings would be useful in preparing the required report to Congress? If so, do you wish to participate in any hearings? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:13:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25304 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:13:24 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25301 for ; Sat, 22 Jul 2000 16:13:23 -0400 Received: from val (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA06967 for ; Sat, 22 Jul 2000 13:12:35 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Here's a good site for info. Date: Sat, 22 Jul 2000 13:08:04 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ron Gustavson, on Thursday, July 20, 2000 8:35 AM, wrote >My latest gripe is: given that they acknowledge this fact, isn't >a security architecture that locks in a system from '94-5 a bad >horse to choose? (especially a systerm which rewards the true >pirates) I keep seeing people say that it's Hollywood's fault for not improving the system for the last three years. Doesn't this seem like an unreasonable expectation? CSS had already caused plenty of problems (delayed players, delayed drives, added expense). Was Hollywood supposed to make players obsolete every 6 months with new versions of CSS? Or should they make 11 million players obsolete now that CSS has been hacked? >Can most (or any) consumer DVD players have their firmware updated? >Jim T? Yes, most players can be factory updated. A few can even be upgraded by inserting a CD. However, updating an EEPROM doesn't necessarily mean that the CSS circuitry in the controller chip can be changed. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:16:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25354 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:16:01 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAB25350 for ; Sat, 22 Jul 2000 16:16:00 -0400 Received: from val (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA12146 for ; Sat, 22 Jul 2000 13:15:15 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Here's a good site for info. Date: Sat, 22 Jul 2000 13:10:45 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sampo A Syreeni, on Friday, July 21, 2000 4:49 AM, wrote > >Notice how few DVD's have >actually come out after DeCSS was published and the little effect revoking >the Xing key could have had. This must have either been a joke or a typo. More than 150 million movie DVDs have been published in the U.S. alone since DeCSS became available. >From where I sit, it doesn't look like DeCSS had much of a detrimental effect on DVD releases. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:19:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25423 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:19:57 -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 QAA25420 for ; Sat, 22 Jul 2000 16:19:56 -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:2.21) with ESMTP id QAA18484 for ; Sat, 22 Jul 2000 16:19:12 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA01242; Sat, 22 Jul 2000 16:19:12 -0400 (EDT) Date: Sat, 22 Jul 2000 16:19:12 -0400 (EDT) Message-Id: <200007222019.QAA01242@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722173719.A15227@ramtop.demon.co.uk> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes: > So how can the plaitiffs claim that the consumer is only granted > permission to play a DVD on an authorised player if the consumer is > not given any indication whether their player is authorised for > that specific DVD? This is a point that they haven't addressed anywhere I've seen, so anything I say will be putting words in their mouths. (When they're explaining the legal reasoning behind CSS to the LOC, etc., they tend to leave out player-key revocation entirely. Gee, I wonder why?) That said: The law says that "decryption ... without ... authorization" is circumvention. It doesn't *say* anywhere that users have to be specifically notified which uses are authorized, and which aren't. I imagine their response would point this out. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:23:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25685 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:23:26 -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 QAA25682 for ; Sat, 22 Jul 2000 16:23:25 -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:2.21) with ESMTP id QAA18658 for ; Sat, 22 Jul 2000 16:22:41 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA01250; Sat, 22 Jul 2000 16:22:40 -0400 (EDT) Date: Sat, 22 Jul 2000 16:22:40 -0400 (EDT) Message-Id: <200007222022.QAA01250@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael A. Rolenz writes: > .....control from end to end.....IANAL but from my > understanding of business law that's a violation of the Anti-Trust laws. > The parallels between this case and the Anti-Trust actions against the > studios after WWII are striking (until that time the studios also owned > theater chains ). But remember, Kaplan has raised the possibility that the DMCA supersedes the antitrust laws. (One reason to consider trying to argue "indefinite intellectual property" grants instead --- antitrust deals with the regulation of monopolies which arise in the marketplace de facto; what we have here, according to the plaintiffs, is something like an exclusive right to the CSS process which Congress has created for them de jure --- and a constitutionally questionable one, if it comes to that). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:27:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25736 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:27:05 -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 QAA25733 for ; Sat, 22 Jul 2000 16:27:04 -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:2.21) with ESMTP id QAA18973 for ; Sat, 22 Jul 2000 16:26:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA01257; Sat, 22 Jul 2000 16:26:19 -0400 (EDT) Date: Sat, 22 Jul 2000 16:26:19 -0400 (EDT) Message-Id: <200007222026.QAA01257@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: <200007221953.PAA10282@emperor.hwrd1.md.home.com> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <200007221953.PAA10282@emperor.hwrd1.md.home.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Bauer writes: > >The consumer doesn't have to be aware of this, on the plaintiffs' > >view, because unauthorized players aren't supposed to *exist*. > >Remember their argument, once again: > > They can stick their heads in the sand all they want, but unauthorized > ones do exist. Sigh... they aren't supposed to exist because the courts are supposed to suppress them, which is exactly what they're asking Kaplan to do in this case. > Also more will exist whenever a player key gets > revoked. And those unauthorized players won't play DVDs... CSS access control at work. It's *working* unauthorized players that are supposed to be suppressed, because in order to work, they must "circumvent" CSS "access control". rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:29:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA25906 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:29:24 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA25903 for ; Sat, 22 Jul 2000 16:29:23 -0400 Received: from val (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id NAA08135 for ; Sat, 22 Jul 2000 13:28:36 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] King: Authority to decode CSS does not come from Warner! Date: Sat, 22 Jul 2000 13:24:05 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <3977419B.EC2D7229@uic.edu> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Schulien, on Thursday, July 20, 2000 11:15 AM, wrote > >Mr. Garbus questioning Ms. King on page 454: > >> 12 Q. Can Warner decide on its own to allow a company to play >> 13 its DVDs without that company having a license from the >> 14 DVD-CCA? > >> 15 A. No, not if we have encrypted the movie. > >> 16 Q. If you encrypted the movie and I created a player that >> 17 could deencrypt that movie, could Warner sell that DVD to me? > >> 18 A. I think that would violate the license with DVD-CCA. > >Didn't she just say in essence that Warner, the copyright >owner, does not have the authority to authorize the >decryption of CSS; That only the DVD-CCA has? She's mistaken. The CSS license says nothing about whom you sell a disc to. Think about it. Does Warner ask every buyer what kind of player they intend to play the disc on? Regardless of what she said, I assume that the studios' position would be that they authorize playback of their content through the CSS license. They don't authorize the USER, they authorize the USE. I believe this is a critical point that keeps being glossed over. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:47:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27532 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:47:07 -0400 Received: from web122.yahoomail.com (web122.yahoomail.com [205.180.60.57]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA27529 for ; Sat, 22 Jul 2000 16:47:05 -0400 Received: (qmail 15975 invoked by uid 60001); 22 Jul 2000 20:46:21 -0000 Message-ID: <20000722204621.15974.qmail@web122.yahoomail.com> Received: from [128.122.253.144] by web122.yahoomail.com; Sat, 22 Jul 2000 13:46:21 PDT Date: Sat, 22 Jul 2000 13:46:21 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] how about a letter 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 August 4 is the deadline for comments for the effects of amendments made by Title 1 of the DCMA. Please send comments to the US Copyrights Office. Senator Patrick Leahy's e-address: You'll receive a form reply but the e-mail does reach legislative aides who compile info for the Judicial hearing. --- Bryan Taylor wrote: > > --- Leland Ray wrote: > > I think we should write a letter to the Senate > Judiciary > > Committee bringing the issues in the trial, and > the case > > itself to their attention. Our basic question > should be, > > did you, as authors of the DMCA, intend for your > law to > > be applied in cases like this one? > > > > Many of our arguments about tying, consumer > notification, > > control of player market, use control vs access > control, > > and authorization, I think are good points for > Congress. > > I think these are good points for Congress. I should > also remind > everybody that there is another RFC from the the > copyright office on > the effect of the DMCA on first sale and on computer > program > copyrights. We should take advantage of this. > Original comments are due > 8/4/00, reply comments are due 9/5/00. > > http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html > > Antitrust implications arise if they did not intent > to link transfer of > the right of access to first sale. The question is > "did Congress create > a 'Second Sale' that can be tied to 'First Sale'?" > > Note the catch all at the end: > 2.(b) Do you believe that hearings would be useful > in preparing the > required report to Congress? If so, do you wish to > participate in any > hearings? > > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from > anywhere! > http://mail.yahoo.com/ > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 16:47:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA27524 for dvd-discuss-outgoing; Sat, 22 Jul 2000 16:47:03 -0400 Received: from web119.yahoomail.com (web119.yahoomail.com [205.180.60.120]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA27521 for ; Sat, 22 Jul 2000 16:47:02 -0400 Received: (qmail 16107 invoked by uid 60001); 22 Jul 2000 20:46:14 -0000 Message-ID: <20000722204614.16106.qmail@web119.yahoomail.com> Received: from [128.122.253.144] by web119.yahoomail.com; Sat, 22 Jul 2000 13:46:14 PDT Date: Sat, 22 Jul 2000 13:46:14 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] how about a letter 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 August 4 is the deadline for comments for the effects of amendments made by Title 1 of the DCMA. Please send comments to the US Copyrights Office. Senator Patrick Leahy's e-address: You'll receive a form reply but the e-mail does reach legislative aides who compile info for the Judicial hearing. --- Bryan Taylor wrote: > > --- Leland Ray wrote: > > I think we should write a letter to the Senate > Judiciary > > Committee bringing the issues in the trial, and > the case > > itself to their attention. Our basic question > should be, > > did you, as authors of the DMCA, intend for your > law to > > be applied in cases like this one? > > > > Many of our arguments about tying, consumer > notification, > > control of player market, use control vs access > control, > > and authorization, I think are good points for > Congress. > > I think these are good points for Congress. I should > also remind > everybody that there is another RFC from the the > copyright office on > the effect of the DMCA on first sale and on computer > program > copyrights. We should take advantage of this. > Original comments are due > 8/4/00, reply comments are due 9/5/00. > > http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html > > Antitrust implications arise if they did not intent > to link transfer of > the right of access to first sale. The question is > "did Congress create > a 'Second Sale' that can be tied to 'First Sale'?" > > Note the catch all at the end: > 2.(b) Do you believe that hearings would be useful > in preparing the > required report to Congress? If so, do you wish to > participate in any > hearings? > > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from > anywhere! > http://mail.yahoo.com/ > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 17:04:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA28734 for dvd-discuss-outgoing; Sat, 22 Jul 2000 17:04:24 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28731 for ; Sat, 22 Jul 2000 17:04:09 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA09470 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 17:06:13 -0400 Date: Sat, 22 Jul 2000 17:06:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722170607.A9282@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> <200007222019.QAA01242@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007222019.QAA01242@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Jul 22, 2000 at 04:19:12PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 04:19:12PM -0400, Robert S. Thau wrote: > [...] > That said: The law says that "decryption ... without ... authorization" > is circumvention. It doesn't *say* anywhere that users have to be > specifically notified which uses are authorized, and which aren't. I > imagine their response would point this out. But there is a fundamental ambiguity with the term "authorization." Clearly, if the consumer cannot play the DVD without descrambling it (decryption) then the consumer must be authorized at first sale to decrypt. Otherwise authorization makes no sense. Yes, DeCSS and other decryption programs or hardware are not "authorized" by the DVD-CCA. But I assert that makes no difference here at all. The law cannot be referring to THAT authorization when it forbids circumvention. The authorization comes with the disc, and DeCSS works only with the physical disc. So it would not be possible for plaintiffs to produce some document that showed that DeCSS was not "authorized." All Garbus would have to do is hold up the DVD disc from "Sleepless in Seattle" and say, "Your honor, here is my authorization." Then he can toss it to Gold like a frisbee and say, "Take a good look at it counsel." Plaintiffs are trying to weasel in some other meaning of "authorization," to show that a Linux player would be "unauthorized" by DVD-CAA and so an illegal tool of hackers. Their intent, I assert, is to maintain an illegal restraint of trade by misusing copyright. As you point out, Robert, the MPAA is relying on some technology here (a technology that DeCSS proves is fatally flawed). They try to control use of their copyrighted content by licensing through the DVD-CCA the players and that part of the access control system. But insofar as the technology is used to play back a purchased DVD content, it can never be illegal under DMCA, because the consumer is prima facie authorized at first sale to decrypt. And DeCSS does not decrypt except from an authorized disc. Let's try to make it even simpler. Suppose I subscribe to a cable TV system and receive many channels. Some of them are scrambled, and so I rent a device from the cable system that allows me to view the scrambled content. Perfectly legal, right? Okay, now I find that for some reason the device I have been renting becomes incompatible with some new video or audio system that I buy. So I go on the Internet and find some software program that I can place in my new system that allows me to watch the scrambled channels I have been paying for, and achieve the quality and compatibility I need. The old hardware box might not even be needed any more. Is it illegal for me to do that? I am paying for the content, I have the right to view it and descramble it. I have no obligation to use the content on one particular hardware system or another, licensed by either the cable system or the content producers. I am not violating anybody's copyright. Now, the case might be different if I start to sell a hardware box that contains a descrambler that allows others to descramble and view pay-per-view without paying for it. But in this case I am not. In the 2600 case they are not. There is no violation of DMCA. There is no violation of copyright law. No harm. No case. Case dismissed. Take a good look at that shiny DVD and tell me what authorization you can find on it. This is why the Inside story is stupid: "Hence the civil suit against Corley for violating the anti-circumvention clause of the Digital Millennium Copyright Act, which makes any unlicensed use of DVDs impermissible. The burden on Corley's lawyers is to prove that DeCSS does not circumvent DVD's encryption system." No, the burden is on the plaintiffs to show that DMCA restricts the consumer of a DVD from using a Linux player to view a purchased DVD. DeCSS circumvents nothing. An idea or a technology cannot violate the law. People can, but in this case they definitely cannot. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 17:08:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA29001 for dvd-discuss-outgoing; Sat, 22 Jul 2000 17:08:33 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA28998 for ; Sat, 22 Jul 2000 17:08:31 -0400 Received: by aero.org id <17090-5>; Sat, 22 Jul 2000 14:07:45 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa10302; Sat Jul 22 14:07:36 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 14:07:03 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/22/2000 02:07:02 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Sat, 22 Jul 2000 14:07:42 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Supersedes does not mean repeal. It's a general principle of the law that one cannot have conflicting laws. As someone pointed out in an earlier posting, IF there is some interpretation that does eliminate the conflict, that has to be the way the laws are interpreted. If they violate the Sherman Anti-Trust law, then they cannot also claim DMCA as a defense. But I agree with you that the issue here is "indefinite intellectual property" and that's a CONSTITUTIONAL question. The fact that the mechanism they are using is a Trust is the means they are using. It may be the means of dealing with them too. I wasn't aware until yesterday what the period on copyrights was. I can see changing the copyright period from 28 to 50 yrs. That makes sense since people are living longer. It's reasonable to increase the copyright period to cover their lives and to give their children some benefits But life of the author plus 70 years for post 1978 works. 95 years for publication for "works for hire" or 120 years from creation. 95 years for Pre-1978 works. In all cases this is providing protection for almost 100 years! This would be isn't protecting the creators of intellectual property this is protecting corporations who buy and sell it. Between the late Sonny Bono getting the copyright period extended and the fact that the industry has been changing media about every 10 years, I can see that the Entertainment industry will have steady customers rebuying the same things over and over again. "Robert S. Thau" @eon.law.harvard.edu on 07/22/2000 01:24:31 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in Michael A. Rolenz writes: > .....control from end to end.....IANAL but from my > understanding of business law that's a violation of the Anti-Trust laws. > The parallels between this case and the Anti-Trust actions against the > studios after WWII are striking (until that time the studios also owned > theater chains ). But remember, Kaplan has raised the possibility that the DMCA supersedes the antitrust laws. (One reason to consider trying to argue "indefinite intellectual property" grants instead --- antitrust deals with the regulation of monopolies which arise in the marketplace de facto; what we have here, according to the plaintiffs, is something like an exclusive right to the CSS process which Congress has created for them de jure --- and a constitutionally questionable one, if it comes to that). rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 18:12:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00618 for dvd-discuss-outgoing; Sat, 22 Jul 2000 18:12:26 -0400 Received: from web106.yahoomail.com (web106.yahoomail.com [205.180.60.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA00615 for ; Sat, 22 Jul 2000 18:12:20 -0400 Received: (qmail 15618 invoked by uid 60001); 22 Jul 2000 22:11:24 -0000 Message-ID: <20000722221124.15617.qmail@web106.yahoomail.com> Received: from [128.122.253.144] by web106.yahoomail.com; Sat, 22 Jul 2000 15:11:24 PDT Date: Sat, 22 Jul 2000 15:11:24 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] E-addresses of U.S Senators 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 Listing by states: In case anyone wants to know Sen. D. Feinstein is very much pro-MPAA. Those who live/vote in CA. might want to enlighten her staff. ------------------------------------------ AK Murkowski, Frank (R) email@murkowski.senate.gov AK Stevens, Ted (R) senator_stevens@stevens.senate.gov AL Shelby, Richard (R) senator@shelby.senate.gov AR Bumpers, Dale (D) senator@bumpers.senate.gov AZ Kyl, Jon (R) info@kyl.senate.gov AZ McCain, John (R) senator_mccain@mccain.senate.gov CA Boxer, Barbara (D) senator@boxer.senate.gov CA Feinstein, Dianne (D) senator@feinstein.senate.gov CT Dodd, Christopher (D) sen_dodd@dodd.senate.gov CT Lieberman, Joseph (D)senator_lieberman@lieberman.senate.gov DE Biden, Joe (D) senator@biden.senate.gov DE Roth, William (R) administrator@roth.senate.gov FL Graham, Bob (D) bob_graham@graham.senate.gov FL Mack, Connie (R) connie@mack.senate.gov FL Mack, Connie (R) chairman@jec.senate.gov GA Coverdell, Paul (R) senator_coverdell@coverdell.senate.gov HI Inouye, Daniel (D) senator@inouye.senate.gov IA Grassley,Chuck (R)chuck_grassley@grassley.senate.gov IA Harkin, Tom (D) tom_harkin@harkin.senate.gov ID Craig, Larry (R) larry_craig@craig.senate.gov ID Kempthorne,Dirk(R) dirk_kempthorne@kempthorne.senate.gov IL Durbin, Richard (D) durbin@mcs.com IL Moseley-Braun, Carol (D) senator@moseley-braun.senate.gov IN Lugar, Richard (R) lugar@iquest.net KY Ford, Wendell (D) wendell_ford@ford.senate.gov KY McConnell, Mitch (R) senator@mcconnell.senate.gov LA Breaux, John (D) senator@breaux.senate.gov MA Kennedy, Ted (D) senator@kennedy.senate.gov MA Kerry, John (D) john_kerry@kerry.senate.gov MD Mikulski, Barbara (D) senator@mikulski.senate.gov MD Sarbanes, Paul (D) senator@sarbanes.senate.gov ME Collins, Susan (R) collins96@midcoast.com ME Snowe, Olympia (R) olympia@snowe.senate.gov MI Abraham, Spencer (R) michigan@abraham.senate.gov MI Levin, Carl (D) senator@levin.senate.gov MN Grams, Rod (R) mail_grams@grams.senate.gov MN Wellstone, Paul (D) senator@wellstone.senate.gov MO Ashcroft, John (R) john_ashcroft@ashcroft.senate.gov MO Bond, Christopher (R) kit_bond@bond.senate.gov MS Cochran, Thad (R) senator@cochran.senate.gov MT Baucus, Max (D) max@baucus.senate.gov MT Burns, Conrad (R) conrad_burns@burns.senate.gov NC Faircloth, Lauch (R) senator@faircloth.senate.gov NC Helms, Jesse (R) jesse_helms@helms.senate.gov ND Conrad, Kent (D) senator@conrad.senate.gov ND Dorgan, Byron (D) senator@dorgan.senate.gov NE Kerrey, Bob (D) bob@kerrey.senate.gov NH Gregg, Judd (R) mailbox@gregg.senate.gov NH Smith, Bob (R) opinion@smith.senate.gov NJ Lautenberg, Frank (D) frank_lautenberg@lautenberg.senate.gov NJ Torricelli, Bob (D) torricel@torricelli.com NM Bingaman, (D) senator_bingaman@bingaman.senate.gov NM Domenici, Pete (R) senator_domenici@domenici.senate.gov NV Bryan, Richard (D) senator@bryan.senate.gov NV Reid, Harry (D) senator_reid@reid.senate.gov NY D'Aamato, Alfonse (R) senator_al@damato.senate.gov NY Moynihan, Daniel P (D) senator@dpm.senate.gov OH DeWine, Michael (R) senator_dewine@dewine.senate.gov OH Glenn, John (D) senator_glenn@glenn.senate.gov OK Inhofe, Jim (R) inhofe96@mail.icnet.net OK Nickles, Don (R) senator@nickles.senate.gov OR Wyden, Ron (D) senator@wyden.senate.gov PA Santorum, Rick (R) senator@santorum.senate.gov PA Specter, Arlen (R) senator_specter@specter.senate.gov RI Chafee, John (R) senator_chafee@chafee.senate.gov RI Reed, Jack (D) home@reed96.org SC Hollings, Ernest (D) senator@hollings.senate.gov SC Thurmond, Strom (R) senator@thurmond.senate.gov SD Daschle, Thomas (D) tom_daschle@daschle.senate.gov TN Frist, Bill (R) senator_frist@frist.senate.gov TN Thompson, Fred (R) senator_thompson@thompson.senate.gov TX Hutchison, Kay (R) senator@hutchison.senate.gov UT Bennett, Robert (R) senator@bennett.senate.gov UT Hatch, Orrin (R) senator_hatch@hatch.senate.gov VA Robb, Charles (D) senator@robb.senate.gov VT Jeffords, James (R) vermont@jeffords.senate.gov VT Leahy, Patrick (D) senator_leahy@leahy.senate.gov WA Gorton, Slade (R) senator_gorton@gorton.senate.gov WA Murray, Patty (D) senator_murray@murray.senate.gov WI Feingold, Russell (D) senator@feingold.senate.gov WI Kohl, Herb (D) senator_kohl@kohl.senate.gov WV Byrd, Robert (D) senator_byrd@byrd.senate.gov WV Rockefeller, Jay (D) senator@rockefeller.senate.gov WY Thomas, Craig (R) craig@thomas.senate.gov ---------------------------------------- __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 18:16:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA00645 for dvd-discuss-outgoing; Sat, 22 Jul 2000 18:16:56 -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 SAA00642 for ; Sat, 22 Jul 2000 18:16:55 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6MMG0R04948 for ; Sun, 23 Jul 2000 01:16:00 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 23 Jul 2000 01:15:59 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. In-Reply-To: <8l92k0$k7g$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 21 Jul 2000, David A. Wagner wrote: >If so, can I ask a few questions? Noone was forcing Hollywood to accept >such a request from Intel, right? Couldn't Hollywood have packed their >bags and simply withheld their content and refrained from releasing >their movies on such an insecure platform, if they were truly worried >about its security? Not if there was a real threat of Intel teaming up with an alternative architecture. Which they would if it started to seem that their investment in multimedia/DVD technology wasn't going to pay off. Don't forget Indeo either - Intel is surprisingly strong in the digital image/movie technology market. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 18:34:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01217 for dvd-discuss-outgoing; Sat, 22 Jul 2000 18:34:19 -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 SAA01214 for ; Sat, 22 Jul 2000 18:34:09 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6MMXAl05181 for ; Sun, 23 Jul 2000 01:33:10 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 23 Jul 2000 01:33:09 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! In-Reply-To: <20000721164223.7776.qmail@web514.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 Fri, 21 Jul 2000, Bryan Taylor wrote: >> Wait just a second. Wasn't there something in the >> transcripts/depositions to suggest that the studios actually >> cannot grant the right to decrypt with an unauthorized player >> without breaching their contract with the DVD-CCA? This >> would seem to be in direct contradiction with what Shamos did... > >1201(a)(1) is not in effect yet, so any acts of access conrtol >circumvention that Shamos did are not actionable. He did have verbal >permission, at minimum, so he didn't commit copyright infringement >either. This line of attach doesn't lead anywhere. Even if it did, the >defense doesn't have standing to bring any causes of action. The point is more in the line of perjury. I mean, if we catch them saying under oath something like 'we cannot authorize anybody to do anything', this gets us a nasty contradiction. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 18:35:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01230 for dvd-discuss-outgoing; Sat, 22 Jul 2000 18:35:19 -0400 Received: from hawk.prod.itd.earthlink.net (hawk.prod.itd.earthlink.net [207.217.120.22]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01227 for ; Sat, 22 Jul 2000 18:35:18 -0400 Received: from val (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by hawk.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id PAA09883 for ; Sat, 22 Jul 2000 15:34:27 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Sat, 22 Jul 2000 15:29:52 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2910.0) In-Reply-To: <4.3.2.7.2.20000722154901.00af94f0@popmail.dircon.co.uk> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hammer, on Saturday, July 22, 2000 8:03 AM, wrote >I have recently bought a new standalone DVD player with the following >features:- > >- No Macrovision Protection. >- No Region protection >- An onboard NTSC>PAL converter. > >The point I wish to bring up is this :- Now if the CSS licencing is so >strict how can a player like this slip through and still have all the keys >to allow playback of CSS encrypted disks? I should point out that this >player is not modified in anyway, but straight out of the box does the above. > >Unless I read it all wrong, the manufacturers have to agree to the >licencing terms to include stuff like region protection etc. In this case either the player manufacturer has violated the license (it's not that hard to do -- pay license fee, get player keys, implement CSS, ignore Macrovision, ignore region management), or a second party has modified the player after it left the manufacturer. This is common -- a different company takes in large shipments of players, modifies them, then repackages them for sale. CSS licensing isn't all that strict. It relies on player manufacturers honoring the terms of license, under threat of having their keys revoked. NSTC/PAL conversions are not covered by the CSS license. Part of the reason the two incompatible formats were supported was to provide a bit of backup support for region management, but no one wants to put this down on paper. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 19:08:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02859 for dvd-discuss-outgoing; Sat, 22 Jul 2000 19:08:56 -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 TAA02856 for ; Sat, 22 Jul 2000 19:08:55 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6MN7L005685 for ; Sun, 23 Jul 2000 02:07:21 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 23 Jul 2000 02:07:20 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <200007221422.KAA00269@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 Sat, 22 Jul 2000, Robert S. Thau wrote: >This isn't a criminal case. It's a civil action, and they're asking >for injunctive relief. Don't forget Kaplan's remark about declaratory relief. >(17 USC 1203 allows them to recover damages as >well, but if they were ever asking for that, then they presumably gave >up on it when they stipulated that they were not aware of a single >case in which DeCSS was used to prepare a movie for distribution over >the net). I'm still slightly off the track here. What is the part of the damage done by DeCSS in a supposed copying case like this? I mean, the trouble is with the copying part, right? >They've done so wrt Johansen (who was, I believe, called as a defense >witness out of order); the potential witnesses listed at the end of >the Thursday transcript include the head of the LiViD group, and Chris >DiBona of VA Linux. And it's pretty easy to see that 2600 has little to do with a commercial endeavor. It's about as underground as can be with its hit count. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 19:17:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03125 for dvd-discuss-outgoing; Sat, 22 Jul 2000 19:17:52 -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 TAA03122 for ; Sat, 22 Jul 2000 19:17:51 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6MNG7t05940 for ; Sun, 23 Jul 2000 02:16:07 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 23 Jul 2000 02:16:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <200007221555.LAA00602@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 Sat, 22 Jul 2000, Robert S. Thau wrote: >No; there have been claims on this list that the Xing player key has >already been revoked in this fashion. No problem for the plaintiffs, >though; they have chosen to no longer authorize Xing, in the same way >that they have chosen never to authorize DeCSS. Certainly the Orwellian undertow isn't an accident. I mean, this sounds like history needs some rewriting. ;) Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 19:32:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA04756 for dvd-discuss-outgoing; Sat, 22 Jul 2000 19:32:45 -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 TAA04753 for ; Sat, 22 Jul 2000 19:32:44 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6MNVsE06191 for ; Sun, 23 Jul 2000 02:31:54 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Sun, 23 Jul 2000 02:31:53 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Here's a good site for info. In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 22 Jul 2000, Jim Taylor wrote: >>Notice how few DVD's have >>actually come out after DeCSS was published and the little effect revoking >>the Xing key could have had. > >This must have either been a joke or a typo. More than 150 million movie >DVDs have been published in the U.S. alone since DeCSS became available. No joke, no typo. What I mean is the number of separate *works*. Probably a lot lower than the number of DVDs available, sum total. Probably even less for the percentage of somehow tolerable titles produced. I would imagine it is cheaper for them to just reuse existing glass masters and to only revoke on new titles (since the old ones are out there already). >From where I sit, it doesn't look like DeCSS had much of a detrimental >effect on DVD releases. We are in vigorous agreement. Mine was just a notion, it doesn't have any significant impact on the no-harm line of argument. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 19:59:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA06437 for dvd-discuss-outgoing; Sat, 22 Jul 2000 19:59:16 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA06397 for ; Sat, 22 Jul 2000 19:59:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA09550 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 20:01:06 -0400 Date: Sat, 22 Jul 2000 20:01:01 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722200101.B9282@eldritchpress.org> References: <200007222022.QAA01250@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007222022.QAA01250@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Jul 22, 2000 at 04:22:40PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 04:22:40PM -0400, Robert S. Thau wrote: > Michael A. Rolenz writes: > > .....control from end to end.....IANAL but from my > > understanding of business law that's a violation of the Anti-Trust laws. > > The parallels between this case and the Anti-Trust actions against the > > studios after WWII are striking (until that time the studios also owned > > theater chains ). > > But remember, Kaplan has raised the possibility that the DMCA > supersedes the antitrust laws. That's true. But the way he did it might be wrong. The legislative history should be pertinent. The motives of the studios in buying the DMCA bill should be pertinent. He has excluded Garbus from pursuing his questioning in these areas, because of his refusal to recuse. > (One reason to consider trying to argue "indefinite intellectual > property" grants instead --- antitrust deals with the regulation of > monopolies which arise in the marketplace de facto; what we have here, > according to the plaintiffs, is something like an exclusive right to > the CSS process which Congress has created for them de jure --- and a > constitutionally questionable one, if it comes to that). Either way, it's good for the defense. If the DMCA is seen as allowing "authorization" of particular platforms that the studios approve, then it is de jure regulation and unconstitutional; if the DMCA is not seen as allowing studios to "authorize" particular player platforms, then it is not de jure but de facto antitrust infraction, and the studios are misusing copyright law in restraint of trade (something that Judge Jackson has recognized that Microsoft is doing, and which permits him to take away their claim to protection by copyright law). The "monopoly clause" in the Constitution that allows Congress to pass laws giving authors and inventors exclusive rights is carefully limited in scope "to promote the progress of science and the useful arts." If Congress intended to establish a de jure monopoly for other reasons with the DMCA it would be unconstitutional. For example, if they wished to use the laws to protect the future profit stream of the studios. The fact that DMCA was passed after the antitrust laws cannot change the Constitution, without an amendment to it. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 20:14:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07430 for dvd-discuss-outgoing; Sat, 22 Jul 2000 20:14:27 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA07423 for ; Sat, 22 Jul 2000 20:14:15 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA09569 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 20:16:21 -0400 Date: Sat, 22 Jul 2000 20:16:16 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000722201615.C9282@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <200007221953.PAA10282@emperor.hwrd1.md.home.com> <200007222026.QAA01257@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007222026.QAA01257@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Jul 22, 2000 at 04:26:19PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 04:26:19PM -0400, Robert S. Thau wrote: > Jim Bauer writes: > > >The consumer doesn't have to be aware of this, on the plaintiffs' > > >view, because unauthorized players aren't supposed to *exist*. > > >Remember their argument, once again: > > > > They can stick their heads in the sand all they want, but unauthorized > > ones do exist. > > Sigh... they aren't supposed to exist because the courts are supposed > to suppress them, which is exactly what they're asking Kaplan to do in > this case. Yes, I do think it boils down to one uncomfortable point: do the studios have a right to sell a consumer a DVD and then forbid her from playing it on a Linux machine? > > Also more will exist whenever a player key gets > > revoked. > > And those unauthorized players won't play DVDs... CSS access control > at work. It's *working* unauthorized players that are supposed to be > suppressed, because in order to work, they must "circumvent" CSS > "access control". It is only when one uses a "working unauthorized player" that one can violate the DMCA. But in order to violate the DMCA you have to infringe copyright. If we are talking about the copyright of the content producer, the studio, the film on DVD, then there is no infringement if the user owns the DVD. Unless my point about "authorization" is all wet. For example, Kaplan seemed to propose the rather absurd thought that the authorization doesn't come from the studios or the DVD or the first sale, but rather by means of a priori interpretation of the statute. So one would be able to simply perform a syntactic analysis of the phrase, "unauthorized circumvention of the access control system." There might be a different question if we consider the separate "authorization" of the Linux player by DVD-CCA. But in order to prove copyright infringement you have to show that something is copied--maybe some piece of the CSS code that is copyrighted. But MPAA is not talking about that in this case. The only other rational explanation for what the plaintiffs charge has to be that it is somehow illegal under DMCA to play a valid DVD under Linux. So what do they expect now, lock up all the Linux computers? From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 20:19:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA07828 for dvd-discuss-outgoing; Sat, 22 Jul 2000 20:19:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA07710 for ; Sat, 22 Jul 2000 20:18:58 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id UAA09594 for dvd-discuss@eon.law.harvard.edu; Sat, 22 Jul 2000 20:21:04 -0400 Date: Sat, 22 Jul 2000 20:20:59 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] King: Authority to decode CSS does not come from Warner! Message-ID: <20000722202059.D9282@eldritchpress.org> References: <20000721164223.7776.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Sun, Jul 23, 2000 at 01:33:09AM +0300 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 01:33:09AM +0300, Sampo A Syreeni wrote: > On Fri, 21 Jul 2000, Bryan Taylor wrote: > > >> Wait just a second. Wasn't there something in the > >> transcripts/depositions to suggest that the studios actually > >> cannot grant the right to decrypt with an unauthorized player > >> without breaching their contract with the DVD-CCA? This > >> would seem to be in direct contradiction with what Shamos did... > > > >1201(a)(1) is not in effect yet, so any acts of access conrtol > >circumvention that Shamos did are not actionable. He did have verbal > >permission, at minimum, so he didn't commit copyright infringement > >either. This line of attach doesn't lead anywhere. Even if it did, the > >defense doesn't have standing to bring any causes of action. > > The point is more in the line of perjury. I mean, if we catch them saying > under oath something like 'we cannot authorize anybody to do anything', this > gets us a nasty contradiction. Maybe it's a good reason to insist on Jack Valenti and Michael Eisner as hostile witnesses for the defense. Let them try to explain their way out of it. mumble, mumble, mumble.... i don't remember, i don't know.... From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 23:37:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14057 for dvd-discuss-outgoing; Sat, 22 Jul 2000 23:37:39 -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 XAA14054 for ; Sat, 22 Jul 2000 23:37:37 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 8151A99C80; Sat, 22 Jul 2000 20:36:53 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 63B47938C0 for ; Sat, 22 Jul 2000 20:36:53 -0700 (PDT) Date: Sat, 22 Jul 2000 20:36:53 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <0FY4003QW5TPL0@mta5.snfc21.pbi.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > > I have recently bought a new standalone DVD player with the following > > features:- > > > > - No Macrovision Protection. > > - No Region protection > > - An onboard NTSC>PAL converter. > > > > I have tested this player out to see exactly what it can do - I can (and > > have) recorded Region 1 DVDs (NTSC) to my PAL VCR - Copies are perfect, in > > colour, and with no Macrovision wobbliness. If this player is the Infinity LD-2020U, it was recently reported on Slashdot as a region-free player. It turns out that it uses the same software as the region-free version of the Apex, right down to the seamless branching problems and the wording and appearance of the hidden menu. Considering the crackdown on the Apex, I suspect the same thing will happen for this player if it ever gets popular. Incidentally, the Apex (and presumably the Infinity) also lets you skip the commercials. Press PBC OFF twice and then you can use the DVD DIGEST or TITLE buttons to go directly to the menu. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 22 23:49:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA14550 for dvd-discuss-outgoing; Sat, 22 Jul 2000 23:49:29 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA14547 for ; Sat, 22 Jul 2000 23:49:28 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6N3nMn18634; Sat, 22 Jul 2000 23:49:22 -0400 Date: Sat, 22 Jul 2000 23:49:22 -0400 Message-Id: <200007230349.e6N3nMn18634@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: [dvd-discuss] fact on DVD player to bring in Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ken Arromdee wrote: >If this player is the Infinity LD-2020U, it was recently reported on >Slashdot as a region-free player. It turns out that it uses the same software >as the region-free version of the Apex, right down to the seamless branching >problems and the wording and appearance of the hidden menu. Considering >the crackdown on the Apex, I suspect the same thing will happen for this >player if it ever gets popular. > >Incidentally, the Apex (and presumably the Infinity) also lets you skip the >commercials. Press PBC OFF twice and then you can use the DVD DIGEST or >TITLE buttons to go directly to the menu. > I hope the crackdowns are submissible as evidence. Thanks to Free Unices, we've crawled back UP to 70's. ---------------------- 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 Jul 23 01:11:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16239 for dvd-discuss-outgoing; Sun, 23 Jul 2000 01:11:47 -0400 Received: from mail.rdc2.occa.home.com (imail@ha1.rdc2.occa.home.com [24.2.8.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16236 for ; Sun, 23 Jul 2000 01:11:46 -0400 Received: from [192.168.1.100] ([24.13.176.232]) by mail.rdc2.occa.home.com (InterMail vM.4.01.03.00 201-229-121) with ESMTP id <20000723051102.YQWD24297.mail.rdc2.occa.home.com@[192.168.1.100]> for ; Sat, 22 Jul 2000 22:11:02 -0700 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sat, 22 Jul 2000 22:11:02 -0700 Subject: Re: [dvd-discuss] how about a letter From: Danny Silverman To: Message-ID: In-Reply-To: <20000722204621.15974.qmail@web122.yahoomail.com> Mime-version: 1.0 Content-type: text/plain; charset="ISO-8859-1" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id BAA16237 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know if there has been much talk about Senator Leahy before, so I'll just bring up that he seems like he could be our best ally in the government. He seems to have a firm grasp of internet issues and to genuinely take an interest in what people have to say. >From his PR page: ------------- Known on Capitol Hill as the "cyber senator," Senator Leahy has been actively involved in legislation associated with the Internet. Leahy was one of the first members of Congress to go on-line. (snip) Leahy has crusaded for the protection of privacy rights, copyright protections and freedom of speech on the Internet. The senator is also a co-founder and co-chair of the Congressional Internet Caucus. In 1999 he was awarded the John Peter and Anna Catherine Zenger Award "for outstanding contributions in support of press freedom and the people¹s right to know" -- only the second time since 1954 that it has gone to a government leader. ------------- Sounds like just the right man for the job. Perhaps we should write a joint letter, sign it, and send it off to all of these places, including the senator's office? \\|// (o o) ------------------------------oOOo-(_)-oOOo---------------------------- "Making the simple complicated is commonplace; making the complicated simple, awesomely simple, that's creativity." - Charles Mingus ----------------------------------------------------------------------- Danny Silverman | webmaster@mindwire.org Webmaster, EduDyne Foundation | http://www.mindwire.org ----------------------------------------------------------------------- > From: "Tuyet A. Ngoc Tran" > Reply-To: dvd-discuss@eon.law.harvard.edu > Date: Sat, 22 Jul 2000 13:46:21 -0700 (PDT) > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] how about a letter > > August 4 is the deadline for comments for the effects > of amendments made by Title 1 of the DCMA. Please send > comments to the US Copyrights Office. > > Senator Patrick Leahy's e-address: > > > You'll receive a form reply but the e-mail does reach > legislative aides who compile info for the Judicial > hearing. > > > --- Bryan Taylor wrote: >> >> --- Leland Ray wrote: >>> I think we should write a letter to the Senate >> Judiciary >>> Committee bringing the issues in the trial, and >> the case >>> itself to their attention. Our basic question >> should be, >>> did you, as authors of the DMCA, intend for your >> law to >>> be applied in cases like this one? >>> >>> Many of our arguments about tying, consumer >> notification, >>> control of player market, use control vs access >> control, >>> and authorization, I think are good points for >> Congress. >> >> I think these are good points for Congress. I should >> also remind >> everybody that there is another RFC from the the >> copyright office on >> the effect of the DMCA on first sale and on computer >> program >> copyrights. We should take advantage of this. >> Original comments are due >> 8/4/00, reply comments are due 9/5/00. >> >> > http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_reque > st.html >> >> Antitrust implications arise if they did not intent >> to link transfer of >> the right of access to first sale. The question is >> "did Congress create >> a 'Second Sale' that can be tied to 'First Sale'?" >> >> Note the catch all at the end: >> 2.(b) Do you believe that hearings would be useful >> in preparing the >> required report to Congress? If so, do you wish to >> participate in any >> hearings? >> >> >> __________________________________________________ >> Do You Yahoo!? >> Get Yahoo! Mail ? Free email you can access from >> anywhere! >> http://mail.yahoo.com/ >> >> >> > > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail ? Free email you can access from anywhere! > http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 01:20:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA16427 for dvd-discuss-outgoing; Sun, 23 Jul 2000 01:20:15 -0400 Received: from mail.rdc2.occa.home.com (imail@ha1.rdc2.occa.home.com [24.2.8.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA16424 for ; Sun, 23 Jul 2000 01:20:14 -0400 Received: from [192.168.1.100] ([24.13.176.232]) by mail.rdc2.occa.home.com (InterMail vM.4.01.03.00 201-229-121) with ESMTP id <20000723051930.YVDK24297.mail.rdc2.occa.home.com@[192.168.1.100]> for ; Sat, 22 Jul 2000 22:19:30 -0700 User-Agent: Microsoft Outlook Express Macintosh Edition - 5.01 (1630) Date: Sat, 22 Jul 2000 22:19:30 -0700 Subject: Re: [dvd-discuss] illegal ideas From: Danny Silverman To: Message-ID: In-Reply-To: Mime-version: 1.0 Content-type: text/plain; charset="US-ASCII" Content-transfer-encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I think the whole thing is an attempt to create a trust in > such a way that they can get around Betamax and the Home recording act. I agree. The MPAA honestly thinks what they are saying - that DeCSS will ruin them. It is exactly what they thought in the Betamax case. They don't give a rat's ass about 2600, it seems they are genuinely scared! They ARE trying to remove the Betamax decision, or at least make it not apply here, because they want control. In addition, they hope to further dampen the effects of fair use, as they have before, so that, again, they have more control over the medium. Like the RIAA, the MPAA is afraid of any new technology, and they will fight tooth-and-nail to keep their old business models firmly in the drivers seat. We all know they will lose, as advancement cannot be stopped, but what is sad is that they can trample so many innocent people in the process. In addition, it is not the district court's job to overturn law, AFAIK, that can ONLY be done by the Supreme Court. So unless the EFF has a heck of a lot of money around... \\|// (o o) ------------------------------oOOo-(_)-oOOo---------------------------- "Making the simple complicated is commonplace; making the complicated simple, awesomely simple, that's creativity." - Charles Mingus ----------------------------------------------------------------------- Danny Silverman | webmaster@mindwire.org Webmaster, EduDyne Foundation | http://www.mindwire.org ----------------------------------------------------------------------- > From: Michael.A.Rolenz@aero.org > Reply-To: dvd-discuss@eon.law.harvard.edu > Date: Fri, 21 Jul 2000 20:48:20 -0700 > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] illegal ideas > > > I'm not certain if the intent of the MPAA and the studios in pushing > through DMCA was only to make commercial devices illegal. The home copying > and recording is something they don't like at all. [It's THEFT. its like a > lock etc etc]. I think the whole thing is an attempt to create a trust in > such a way that they can get around Betamax and the Home recording act. > > > > > Chris Moseng @eon.law.harvard.edu on 07/21/2000 > 06:36:45 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: Re: [dvd-discuss] illegal ideas > > > Eric Eldred wrote: > >> Judge Kaplan has been groping, I think, in all this testimony >> to try to figure out just what to do. [...] > > Well summed up, Eric. It's nice to have the forest pointed out us, > blinded by the trees we've planted. > > It brings up another common issue (probably more clearly than I'm going > to butcher now). If Kaplan determines DeCSS illegal under 1201, there is > a clear path to a challenge to 1201 on constitutional grounds. I think > the law, despite its name, sounds as if it was written with a world of > physical objects in mind. Banning a device or a box is a universe apart > from banning an idea or speech. > > So either 1201 intends to control commercial distribution of actual > boxes that had the sole purpose of circumventing access controls (power > from the commerce clause), or it's got some real consitutional problems. > So maybe Kaplan offers the MPAA a damned-if-you-do proposal: Criminalize > DeCSS and other software like it, and risk losing your entire law... Or > realize that this is not the battle to fight. > > I believe the studios have painted themselves into this corner, and even > the judge can't airlift them out. > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > > > From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 02:28:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA17523 for dvd-discuss-outgoing; Sun, 23 Jul 2000 02:28:27 -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 CAA17520 for ; Sun, 23 Jul 2000 02:28:26 -0400 Message-ID: <20000723062713.4531.qmail@web513.mail.yahoo.com> Received: from [64.81.25.36] by web513.mail.yahoo.com; Sat, 22 Jul 2000 23:27:12 PDT Date: Sat, 22 Jul 2000 23:27:12 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] how about a letter 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 --- Danny Silverman wrote: > I don't know if there has been much talk about Senator Leahy before, > so I'll just bring up that he seems like he could be our best ally > in the government. He seems to have a firm grasp of internet > issues and to genuinely take an interest in what people have to say. I believe Senator Leahy cited the NY DVD case proudly as a good example of the DMCA in action during the recent Napster hearings. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 02:50:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA17693 for dvd-discuss-outgoing; Sun, 23 Jul 2000 02:50:58 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA17690 for ; Sun, 23 Jul 2000 02:50:57 -0400 Received: from ppp.anonymizer.com (c02-053.015.popsite.net [64.24.73.53]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA06660 for ; Sat, 22 Jul 2000 23:52:27 -0700 (PDT) Message-Id: <4.3.2.7.2.20000722234326.04fc3d70@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 22 Jul 2000 23:51:23 -0700 To: From: "James S. Tyre" Subject: Re: [dvd-discuss] illegal ideas In-Reply-To: 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 At 10:19 PM 7/22/2000 -0700, Danny Silverman wrote: >In addition, it is not the district court's job to overturn law, AFAIK, that >can ONLY be done by the Supreme Court. So unless the EFF has a heck of a >lot of money around... Can we please kill this myth, once and for all? I think I've seen it more times than the Needless Markup cookie recipe. ;-) It is the right, power and duty of a District Court judge to declare a statute unconstitutional, if the proper case is before the judge and if that is how the judge sees it. Ask yourself two questions, just for illustrative purposes: 1. Who declared the CDA unconstitutional? Hint: it wasn't the Supreme Court, they just affirmed the ruling of the lower court. 2. Who granted a preliminary injunction against COPA (CDA II) on the grounds that it was probably unconstitutional? Hint: it wasn't the Third Circuit Court of Appeals, which affirmed the lower court's grant of the preliminary injunction. A District Court judge can not overrule the decision of a higher court - though the judge can try to find a way around the decision. But a District Court judge sure as hell can declare a statute unconstitutional. -------------------------------------------------------------------- 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 Sun Jul 23 04:39:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA18819 for dvd-discuss-outgoing; Sun, 23 Jul 2000 04:39:29 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA18816 for ; Sun, 23 Jul 2000 04:39:21 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id JAA18071 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 09:28:18 +0100 Date: Sun, 23 Jul 2000 09:28:18 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723092818.A18036@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Sat, Jul 22, 2000 at 01:00:47PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 01:00:47PM -0700, Michael.A.Rolenz@aero.org wrote: > > That's an interesting point. The whole concept of being able to revoke > player keys would seem to violate the Uniform Commercial Code Section 2-314 > > Goods to be merchantable must be at least such as > > (c) are fit for the ordinary purposes for which such goods are > used; > > it seems obvious that the "ordinary purpose" of buying a DVD is to play it. > So...If I buy a player and they revoke the keys then ANY DVD that they sell > after revoking the keys cannot be played by the thousands of people who > previously purchased them in good faith. It's not "fit for the ordinary > purpose" > > Now try this hypothetical....suppose the player maker gets BACK into their > good graces.Do they give him a New key so that now they have a bunch of > disks that can't be played on the old players but only on the new ones? Or > do they give him back the old key so that the disks sent out while the > player maker was our of favor? If this happens three or four times what > disks work on what machines and when do they work (e.g., model XX shipped > between 11May2000 and 15May2000 will not work) could get to be a real > nightmare to keep it all straight. > I am wondering how the consumer is supposed to know whether or not a given disk has the keys for their player when they buy that disk. Can the plaintiffs really claim that they are only authorising access to the copyrighted work using an authorised player if they are not informing the consumer which players are still authorised to play that particular disk? Because if this claim doesn't hold up, could it be argued that the consumer is not restricted to using authorised players to access the copyrighted work? In which case, wouldn't this invalidate the circumvention argument, since the user would be authorised to access the DVD? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 10:43:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA21839 for dvd-discuss-outgoing; Sun, 23 Jul 2000 10:43:38 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA21819 for ; Sun, 23 Jul 2000 10:43:37 -0400 Received: from 216-164-139-126.s380.tnt5.lnhva.md.dialup.rcn.com ([216.164.139.126]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13GMxt-0004bT-00 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 10:42:55 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <20000723062713.4531.qmail@web513.mail.yahoo.com> References: <20000723062713.4531.qmail@web513.mail.yahoo.com> Date: Sun, 23 Jul 2000 10:41:30 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] how about a letter 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 >--- Danny Silverman wrote: > > I don't know if there has been much talk about Senator Leahy before, > > so I'll just bring up that he seems like he could be our best ally > > in the government. He seems to have a firm grasp of internet > > issues and to genuinely take an interest in what people have to say. >I believe Senator Leahy cited the NY DVD case proudly as a good example >of the DMCA in action during the recent Napster hearings. " In 1998, the Chairman and I worked closely together on the Digital Millennium Copyright Act, "DMCA," to advance the complementary goals of protecting intellectual property rights in a digitally-networked world and promoting the continued growth of electronic commerce and development of innovative technologies. As new online services are launched and new websites created, the DMCA is helping order the online environment. For example, earlier this year a federal court relied on the DMCA to shut down websites that were used to post a computer program permitting users to break the encryption used to protect copyrighted motion pictures on DVDs, and copy the movies without permission. See Universal City Studios, Inc. v. Reimerdes, 82 F. Supp.2d 211 (S.D.N.Y. 2000). " Statement of Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee , Hearing On "The Future of Digital Music: Is There an Upside to Downloading?", July 11, 2000 http://www.senate.gov/~judiciary/7112000_pjl.htm From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 12:59:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26512 for dvd-discuss-outgoing; Sun, 23 Jul 2000 12:59:47 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA26509 for ; Sun, 23 Jul 2000 12:59:35 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id NAA10111 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 13:01:50 -0400 Date: Sun, 23 Jul 2000 13:01:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723130144.A9674@eldritchpress.org> References: <20000723092818.A18036@ramtop.demon.co.uk> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000723092818.A18036@ramtop.demon.co.uk>; from pharrison@ramtop.demon.co.uk on Sun, Jul 23, 2000 at 09:28:18AM +0100 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 09:28:18AM +0100, Phil Harrison wrote: > >... > I am wondering how the consumer is supposed to know whether or not a given disk > has the keys for their player when they buy that disk. Can the plaintiffs really > claim that they are only authorising access to the copyrighted work using an > authorised player if they are not informing the consumer which players are still > authorised to play that particular disk? > > Because if this claim doesn't hold up, could it be argued that the consumer is > not restricted to using authorised players to access the copyrighted work? In > which case, wouldn't this invalidate the circumvention argument, since the user > would be authorised to access the DVD? There is another point here. Suppose the avid Meg Ryan fan buys a DVD and a player. Suppose the player keys are subsequently revoked, so that particular player is no longer "authorized." In what sense is the fan not "authorized" to continue playing the DVD on her player? Now, it may be true that subsequent DVDs come with new keys and that they may not therefore contain sufficient "authorization" for her to play them. But that is a matter of the technology, the access control mechanism to enforce. I can't see any way that her continuing to play a valid DVD on such a player would be "unauthorized" under law if she could do so technically. I think the "authorization" has to come from owning the disc itself, not from some separate "authorization" from DVD-CCA that the consumer nevers gets nor has to get. Otherwise it is not sufficient to revoke the keys. The DVD-CCA would should have to go to court and ask that all the "unauthorized" players be seized in violation of the DMCA. But if that is true, then DeCSS is no more a circumvention than is playing a valid DVD on a player with keys revoked. Because DeCSS works exactly the same way, by a user of a valid DVD and a valid player being able to play the DVD on a player that is not "authorized," i.e., Linux. All this seems too simple now. Where have I gone wrong? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 13:23:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26850 for dvd-discuss-outgoing; Sun, 23 Jul 2000 13:23:24 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26847 for ; Sun, 23 Jul 2000 13:23:23 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA32689 for ; Sun, 23 Jul 2000 12:22:23 -0500 Message-ID: <397B2695.E2FA5E9A@mninter.net> Date: Sun, 23 Jul 2000 12:08:37 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in References: <20000723092818.A18036@ramtop.demon.co.uk> <20000723130144.A9674@eldritchpress.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 -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Eric Eldred wrote: > All this seems too simple now. Where have I gone wrong? You haven't, the studios have. They must explicitly define authorization. An incomplete or inconsistant definition makes the suit impossible to defend, and concedes them more authority than they actually have. I sincerely hope that the studios are compelled to reveal quite a bit more of their understanding of authorization in testimony than they have; what we have now is insufficient. Put plainly, I do not want to be sued for violating the DMCA with my DVDs, but **I don't know what not to do**. The studios need to expose their authority model to reasonably expect people to comply with it. This is a legitimate stipulation. We all know why they have not complied. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOXsmlDik9YADgV7kEQJywgCbB+Lls1CLBKPlJ3qxOldqpxi6/VEAnjED EfyI16qjp0xkNZMFnsAmabAC =GjGY -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 13:41:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA26991 for dvd-discuss-outgoing; Sun, 23 Jul 2000 13:41:15 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA26988 for ; Sun, 23 Jul 2000 13:41:14 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA5730 for ; Sun, 23 Jul 2000 13:40:56 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id NAA01893 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 13:40:15 -0400 Date: Sun, 23 Jul 2000 13:40:15 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723134015.A1570@agape.murphy.cx> References: <20000723092818.A18036@ramtop.demon.co.uk> <20000723130144.A9674@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000723130144.A9674@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Sun, Jul 23, 2000 at 01:01:45PM -0400, thus spake Eric Eldred: > But if that is true, then DeCSS is no more a circumvention > than is playing a valid DVD on a player with keys revoked. > Because DeCSS works exactly the same way, by a user of > a valid DVD and a valid player being able to play the > DVD on a player that is not "authorized," i.e., Linux. > > All this seems too simple now. Where have I gone wrong? It's not yet in the record. Does the DVDCCA actually have a policy of revoking keys? Has the Xing key in fact been revoked? (The DVDCCA license came up in court in Thursday, but it wasn't received into evidence. Did anything happen on Friday?) Can "authority" be delegated? By virtue of having their copyrighted movies pressed into DVDs with CSS, do the copyright holders implicitly or explicitly delegate this authority to the DVDCCA? I think that we agree that cable descramblers are intended to be prevented by the DCMA. Do cable descramblers operate "with the authority of the copyright holder"? Only if the copyright holders delegate the authority to enable descramblers to the cable operators. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 13:57:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27111 for dvd-discuss-outgoing; Sun, 23 Jul 2000 13:57:04 -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 NAA27108 for ; Sun, 23 Jul 2000 13:57:04 -0400 Message-ID: <20000723175551.5005.qmail@web515.mail.yahoo.com> Received: from [64.81.25.36] by web515.mail.yahoo.com; Sun, 23 Jul 2000 10:55:51 PDT Date: Sun, 23 Jul 2000 10:55:51 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] San Jose Mercury News article 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.sjmercury.com/svtech/news/breaking/ap/docs/226450l.htm __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 14:04:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27221 for dvd-discuss-outgoing; Sun, 23 Jul 2000 14:04:58 -0400 Received: from swan.prod.itd.earthlink.net (swan.prod.itd.earthlink.net [207.217.120.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27218 for ; Sun, 23 Jul 2000 14:04:57 -0400 Received: from val (user-2inib2u.dsl.mindspring.com [165.121.44.94]) by swan.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id LAA21405 for ; Sun, 23 Jul 2000 11:04:14 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Sun, 23 Jul 2000 11:04:05 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <20000723134015.A1570@agape.murphy.cx> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Importance: Normal Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu As far as I know, the Xing player key has not been revoked. I suspect the DVD CCA would be very hesitant to revoke a key if there was a possibility that legitimate owners of the player would be unable to play new discs. There are still many people out there using the player software they bought from Xing or that was bundled with their computer. At this point key revocation is a fruitless exercise anyway, since all 400 player keys have been generated. A version of DeCSS that used the player key for a popular Sony or Panasonic player could be created. Or it could even generate keys on the fly until it found one that was not revoked from the disc. >...DeCSS is no more a circumvention > than is playing a valid DVD on a player with keys revoked. Once a player's keys are revoked, it is no longer authorized. That's the difference. The authorization is "granted" by the confluence of a player key and an authorized key on a disc. If the disc is pirated, then one could argue that it's a false authorization. If the player is unlicensed (as with DeCSS), then the MPAA is arguing that that is also a false authorization. -- Jim Taylor Author of DVD Demystified and the DVD FAQ -----Original Message----- From: owner-dvd-discuss@eon.law.harvard.edu [mailto:owner-dvd-discuss@eon.law.harvard.edu]On Behalf Of Roy Murphy Sent: Sunday, July 23, 2000 10:40 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Yea, verily on Sun, Jul 23, 2000 at 01:01:45PM -0400, thus spake Eric Eldred: > But if that is true, then DeCSS is no more a circumvention > than is playing a valid DVD on a player with keys revoked. > Because DeCSS works exactly the same way, by a user of > a valid DVD and a valid player being able to play the > DVD on a player that is not "authorized," i.e., Linux. > > All this seems too simple now. Where have I gone wrong? It's not yet in the record. Does the DVDCCA actually have a policy of revoking keys? Has the Xing key in fact been revoked? (The DVDCCA license came up in court in Thursday, but it wasn't received into evidence. Did anything happen on Friday?) Can "authority" be delegated? By virtue of having their copyrighted movies pressed into DVDs with CSS, do the copyright holders implicitly or explicitly delegate this authority to the DVDCCA? I think that we agree that cable descramblers are intended to be prevented by the DCMA. Do cable descramblers operate "with the authority of the copyright holder"? Only if the copyright holders delegate the authority to enable descramblers to the cable operators. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 14:47:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27575 for dvd-discuss-outgoing; Sun, 23 Jul 2000 14:47:22 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27572 for ; Sun, 23 Jul 2000 14:47:22 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P0PQ>; Sun, 23 Jul 2000 14:51:36 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E81@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Sun, 23 Jul 2000 14:51:35 -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 >From the transcript 20 July, p. 750/751 (the witness is Felton): 20 Q. What does CSS protect? 21 A. What it does or what it was intended to do is to -- it was 22 really two things. First of all, it was designed to prevent a 23 CSS-encoded DVD from being played in any player which did not 24 have the CSS algorithm in it. Second, it has the effect of 25 preventing any use other than playing of the material on the 1 DVD. 2 Q. Did it have any -- was it designed or intended to protect 3 the material in the DVD from being copied? 4 A. It did not -- it certainly did not, nor could it have 5 prevented the encrypted content from being copied to somewhere 6 else to our disk, to another DVD. ----- There needs to be a distinction between the technological secret that is CSS decryption, and the license. The "effect of preventing any use other than playing of the material on the DVD" is only controlled by the license, right? In other words, does anyone know of anything in the CSS secret itself that would prohibit any use other than playing? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 14:50:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27699 for dvd-discuss-outgoing; Sun, 23 Jul 2000 14:50:53 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27696 for ; Sun, 23 Jul 2000 14:50:52 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3P0PS>; Sun, 23 Jul 2000 14:55:07 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E82@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Sun, 23 Jul 2000 14:55:06 -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 Before everyone reads my note and mentions it. s/Felton/Felten/ My apologies. Nmaes are something spell checkers are terrible at. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 15:09:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA27782 for dvd-discuss-outgoing; Sun, 23 Jul 2000 15:09:02 -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 PAA27779 for ; Sun, 23 Jul 2000 15:09:02 -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:2.21) with ESMTP id PAA25247 for ; Sun, 23 Jul 2000 15:08:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA03999; Sun, 23 Jul 2000 15:08:18 -0400 (EDT) Date: Sun, 23 Jul 2000 15:08:18 -0400 (EDT) Message-Id: <200007231908.PAA03999@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <20000722170607.A9282@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> <200007222019.QAA01242@soggy-fibers.ai.mit.edu> <20000722170607.A9282@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > On Sat, Jul 22, 2000 at 04:19:12PM -0400, Robert S. Thau wrote: > > [...] > > That said: The law says that "decryption ... without ... authorization" > > is circumvention. It doesn't *say* anywhere that users have to be > > specifically notified which uses are authorized, and which aren't. I > > imagine their response would point this out. > > But there is a fundamental ambiguity with the term "authorization." > > Clearly, if the consumer cannot play the DVD without descrambling > it (decryption) then the consumer must be authorized at first sale > to decrypt. Otherwise authorization makes no sense. Agreed. So there's no ambiguity, I certainly don't agree with the positions that I've been imputing to the plaintiffs --- I've been arguing that they are misreading the law's reference to their authority for months. But it's still important to know their view, so we don't waste time, for instance, arguing a point like the lack of a contract between them and the end viewer which they are perfectly willing to concede. rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 16:47:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA00558 for dvd-discuss-outgoing; Sun, 23 Jul 2000 16:47:05 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA00555 for ; Sun, 23 Jul 2000 16:46:53 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id QAA10197 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 16:49:07 -0400 Date: Sun, 23 Jul 2000 16:49:01 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723164901.B9674@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> <200007222019.QAA01242@soggy-fibers.ai.mit.edu> <20000722170607.A9282@eldritchpress.org> <200007231908.PAA03999@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007231908.PAA03999@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sun, Jul 23, 2000 at 03:08:18PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 03:08:18PM -0400, Robert S. Thau wrote: >... > Agreed. So there's no ambiguity, I certainly don't agree with the > positions that I've been imputing to the plaintiffs --- I've been > arguing that they are misreading the law's reference to their > authority for months. But it's still important to know their view, so > we don't waste time, for instance, arguing a point like the lack of a > contract between them and the end viewer which they are perfectly > willing to concede. Yes, I believe your points are very good. Now, as far as a contract or license goes, to authorize or not authorize DeCSS. And what licenses exist and what they say: In most respects, I believe that is irrelevant. It is really up to the plaintiffs to show the licenses and what they say and how they apply or don't apply to this case. They need to be able to specify what conduct is illegal under a license or not. For example, it is quite possible that my earlier example of a cable tv descrambler (being legal because the service is paid for) might be an example of violation of the license between the viewer and the cable system, or the content copyright holder. (For example, the license might say for some reason that I contract to pay rent on one Scientific-Atlanta hardware box--God knows why such a license would ever be written--but if I comply with that part of the contract, it still remains to be seen if I can put some other box in my system that is not mentioned by the contract.) But that would be a license dispute, not a copyright dispute. And this is a copyright law case, not a contract law case. Judge Kaplan has already pointed the way for us--look at the DMCA law itself and interpret what it says--don't look at the license that comes with the DVD disc. That license no doubt is invalid if it claims to take away rights that the consumer under law has no obligation to forfeit--such as for example the right under Betamax to timeshift viewing of purchased content. As Linus always says, "let's look at the code here." It seems to me that for copyright infringement to occur there has to be unauthorized copying, you have to infringe upon some exclusive right of the copyright holder here. Does copying in itself do that? As far as I understand, is it not true that once you start to play a valid DVD in a valid DVD player, once the authentication process is over, you can simply copy the DVD files to your hard disk? You don't need DeCSS to do this, just copy programs that every Windows user uses. Can DMCA forbid this, by labeling it as "unauthorized circumvention of the access control mechanism"? What is authorized or unauthorized about it? I don't think plaintiffs could argue that it was a violation of the copyright holder's right, unless one tried to sell the copy. But if one used the copy to play the movie in a Linux player, then where is the violation? Copying in and of itself, as Betamax showed, is not per se infringement. Or is it the decryption that is the violation? How can that be a violation, if the normal process of playing a valid DVD in a valid DVD player involves exactly the same decryption? In order to tell the legal decryption from the illegal decryption, one has to look at the DVD and see if it is an illegal copy, not look at the process of viewing it. The authorization comes from the copyright holder at the time of first sale, not authorization by the DMCA law itself or somehow telepathically when one chooses to view the DVD --that would make no sense, there would be no way to judge a case from the facts. DMCA involves criminal penalties--it is intended to be applied to humans, not code; code has no motives, it is just a tool, humans have motives and justifications. Or is it the allegation that the decryption program is not authorized by the DVD-CCA? But where is the requirement that the consumer needs or even has any way to get such an authorization? Why doesn't that come along with the first sale of the DVD? If DMCA is interpreted to mean that only decryption programs authorized by the DVD-CCA can be distributed, what gives DVD-CCA and MPAA such monopoly powers? Surely not the copyright law--DeCSS might infringe on DVD-CCA copyright in some way by copying code, but that is not a point raised in this case at all. If licenses are involved in this case, plaintiffs have to introduce the licenses, explain them, show evidence, demonstrate motives. If there are no appropriate licenses, and only DMCA is the governing authority, then they fail. As I said before, I would pay a lot of money to sit in the courtroom and watch Martin Garbus hold up a shiny DVD disc, with both hands overhead like a communion wafer, turn around to show it to everyone in the room and say, "here is your sacred authorization, THIS is the license, take it and go in peace. Break it up in small pieces and tile your bathroom with it. Use it for toilet paper if you want to. Put in in your dishwasher and play it. Examine it under a scanning electron microscope. You paid for this, you can use it if you want to. DeCSS is just code. It is not dangerous. You can't put code in jail. This case is about freedom of ideas. MPAA wants to own all our ideas and lock them up. If they win, we all lose. Yes, Meg Ryan and Tom Hanks are our new gods and goddesses. You can put Eric Corley in jail, just like Socrates, for offending the gods. You can put Eric Corley in jail, just like Peter Zenger, for insulting the governors of our new corporate economy. But you can't lock up ideas, you can't lock up code, you can't destroy the art of DeCSS any more than you can destroy the movie that this code represents (breaks the disc in two and hands it to the judge)." Well, I might be a little melodramatic there, I should leave it to the lawyers to write the script... From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 19:43:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA03735 for dvd-discuss-outgoing; Sun, 23 Jul 2000 19:43:46 -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 TAA03732 for ; Sun, 23 Jul 2000 19:43:45 -0400 Received: from ip64.bedford3.ma.pub-ip.psi.net ([38.32.11.64]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13GVOi-00039R-00 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 19:43:04 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Date: Sun, 23 Jul 2000 19:36:48 -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 TAA03733 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, 22 Jul 2000 13:08:04 -0700, Jim Taylor wrote: >I keep seeing people say that it's Hollywood's fault for not improving the >system for the last three years. Doesn't this seem like an unreasonable >expectation? CSS had already caused plenty of problems (delayed players, >delayed drives, added expense). Was Hollywood supposed to make players >obsolete every 6 months with new versions of CSS? Or should they make 11 >million players obsolete now that CSS has been hacked? It is unrealistic. But the Hollywood goal of total control is also unrealistic. Actually, now that CSS is hacked, I like it. Most consumers won't bother to DeCSS/DivX their DVDs, so it does provide a slight measure of inconvenience to dissuade rampant copying, but those who need to make a home copy or short clip for teaching, criticism, or derivative works now can. The problem now is no longer CSS, but the over-ambitious DMCA. >Yes, most players can be factory updated. A few can even be upgraded by >inserting a CD. However, updating an EEPROM doesn't necessarily mean that >the CSS circuitry in the controller chip can be changed. That makes sense. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 21:03:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA05725 for dvd-discuss-outgoing; Sun, 23 Jul 2000 21:03:04 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA05700 for ; Sun, 23 Jul 2000 21:03:03 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA10788 for ; Sun, 23 Jul 2000 18:02:17 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA27484; Sun, 23 Jul 2000 18:00:23 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 23 Jul 2000 17:59:15 -0700 Organization: A poorly-installed InterNetNews site Lines: 10 Distribution: isaac Message-ID: <8lg4d3$qqr$1@blowfish.isaac.cs.berkeley.edu> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor wrote: > I keep seeing people say that it's Hollywood's fault for not improving the > system for the last three years. Doesn't this seem like an unreasonable > expectation? Personally, I think it makes more sense to raise questions about why Hollywood didn't get it right the first time. Did they just not care about this level of security? I mean, it's not rocket science to know that if you make software players, someone _will_ reverse-engineer them, sooner or later. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 21:04:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06181 for dvd-discuss-outgoing; Sun, 23 Jul 2000 21:04:43 -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 VAA06178 for ; Sun, 23 Jul 2000 21:04:42 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA18630; Sun, 23 Jul 2000 21:03:57 -0400 Date: Sun, 23 Jul 2000 21:03:57 -0400 From: Jim Bauer Message-Id: <200007240103.VAA18630@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: <200007222026.QAA01257@soggy-fibers.ai.mit.edu> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <200007221953.PAA10282@emperor.hwrd1.md.home.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: >Jim Bauer writes: > > >The consumer doesn't have to be aware of this, on the plaintiffs' > > >view, because unauthorized players aren't supposed to *exist*. > > >Remember their argument, once again: > > > > They can stick their heads in the sand all they want, but unauthorized > > ones do exist. > >Sigh... they aren't supposed to exist because the courts are supposed >to suppress them, which is exactly what they're asking Kaplan to do in >this case. Kaplan already said in so many words that that is an impossibility. Not only has the horse left the barn, it ran stright into a cloaning machine and millions of identical twin horses popped out the other side. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 21:05:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06329 for dvd-discuss-outgoing; Sun, 23 Jul 2000 21:05:29 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA06326 for ; Sun, 23 Jul 2000 21:05:28 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA10800 for ; Sun, 23 Jul 2000 18:04:43 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA27508; Sun, 23 Jul 2000 18:02:48 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Here's a good site for info. Date: 23 Jul 2000 18:02:38 -0700 Organization: A poorly-installed InterNetNews site Lines: 12 Distribution: isaac Message-ID: <8lg4je$qrj$1@blowfish.isaac.cs.berkeley.edu> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu John Galt wrote: > I thought the "S" in RSA designed an optical sieve that trivializes > cracking RSA. Basically, it reduces the number of keys you have to try > to a manageable number... Nope, it's not so. Shamir discovered some improvements that speed up factoring algorithms by maybe an order of magnitude. It's an incremental improvement, not a drastic breakthrough, and it doesn't change much. 1024-bit RSA keys are still absolutely infeasible to break, as far as we know. From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 21:22:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07422 for dvd-discuss-outgoing; Sun, 23 Jul 2000 21:22:28 -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 VAA07419 for ; Sun, 23 Jul 2000 21:22:26 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA18712; Sun, 23 Jul 2000 21:21:37 -0400 Date: Sun, 23 Jul 2000 21:21:37 -0400 From: Jim Bauer Message-Id: <200007240121.VAA18712@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: <20000723092818.A18036@ramtop.demon.co.uk> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison wrote: > >I am wondering how the consumer is supposed to know whether or not a given disk >has the keys for their player when they buy that disk. Can the plaintiffs really >claim that they are only authorising access to the copyrighted work using an >authorised player if they are not informing the consumer which players are still >authorised to play that particular disk? > >Because if this claim doesn't hold up, could it be argued that the consumer is >not restricted to using authorised players to access the copyrighted work? In >which case, wouldn't this invalidate the circumvention argument, since the user >would be authorised to access the DVD? Assume a consumer owns a so-called approved DVD player. Then later the keys for that player are revoked. Sometime later they buy a new DVD and take it home to play it on their player. However it dosn't work. I see no way for the consumer to have known it would not work or even concieve of the possibility that is wouldn't work. In this case would the MPAA et. al. be liable for a fraudulent sale of a "worthless" CD? Or what about the player manufactures who sold the DVD player whos market value just went down the drain? Do I smell a future class action law suit? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 21:33:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07764 for dvd-discuss-outgoing; Sun, 23 Jul 2000 21:33:46 -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 VAA07761 for ; Sun, 23 Jul 2000 21:33:45 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA18777; Sun, 23 Jul 2000 21:32:57 -0400 Date: Sun, 23 Jul 2000 21:32:57 -0400 From: Jim Bauer Message-Id: <200007240132.VAA18777@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael.A.Rolenz@aero.org wrote: > >Supersedes does not mean repeal. It's a general principle of the law that >one cannot have conflicting laws. As someone pointed out in an earlier >posting, IF there is some interpretation that does eliminate the conflict, >that has to be the way the laws are interpreted. If they violate the >Sherman Anti-Trust law, then they cannot also claim DMCA as a defense. > > But I agree with you that the issue here is "indefinite intellectual >property" and that's a CONSTITUTIONAL question. The fact that the >mechanism they are using is a Trust is the means they are using. It may be >the means of dealing with them too. I wasn't aware until yesterday what >the period on copyrights was. I can see changing the copyright period from >28 to 50 yrs. That makes sense since people are living longer. It's >reasonable to increase the copyright period to cover their lives and to >give their children some benefits I disagree. Society is moving much faster now then it did when copyrights were first created. I believe it is imperative that copyright be for much short term then even 28 years. The same goes for patents as well. Currently copyright and patent terms are "essentially forever". By the time the government granted monopoly expires and the work in finally placed into the public domain, it has most likely long since become obsolete. Where in the constitution does it say workes sould be monopolized until they no longer have any value? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 22:14:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA08839 for dvd-discuss-outgoing; Sun, 23 Jul 2000 22:14:08 -0400 Received: from dial216.roadrunner.com (dial216.cybermesa.com [209.12.75.216] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA08836 for ; Sun, 23 Jul 2000 22:14:06 -0400 Received: (from paul@localhost) by dial216.roadrunner.com (8.8.7/8.8.7) id UAA03541 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 20:14:14 -0600 Date: Sun, 23 Jul 2000 20:14:13 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723201413.A3057@localhost> References: <20000723134015.A1570@agape.murphy.cx> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Sun, Jul 23, 2000 at 11:04:05AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 11:04:05AM -0700, Jim Taylor wrote: > As far as I know, the Xing player key has not been revoked. I suspect the > DVD CCA would be very hesitant to revoke a key if there was a possibility > that legitimate owners of the player would be unable to play new discs. > There are still many people out there using the player software they bought > from Xing or that was bundled with their computer. At this point key > revocation is a fruitless exercise anyway, since all 400 player keys have > been generated. A version of DeCSS that used the player key for a popular > Sony or Panasonic player could be created. Or it could even generate keys on > the fly until it found one that was not revoked from the disc. > > >...DeCSS is no more a circumvention > > than is playing a valid DVD on a player with keys revoked. > > Once a player's keys are revoked, it is no longer authorized. That's the > difference. The authorization is "granted" by the confluence of a player key > and an authorized key on a disc. If the disc is pirated, then one could > argue that it's a false authorization. If the player is unlicensed (as with > DeCSS), then the MPAA is arguing that that is also a false authorization. 1. This analysis assumes a particular defintion for "access" that is essentially the use via decryption of a work. That assumption is not a safe one because "access" is not defined in the statute. A def'n of access as commercial access is also viable and needs to be addressed. 2. Assuming the def'n of access you've taken, statutory fair use provisions in 1201(c)(4) and non-copyright use in 1201(c)(1), and consitutional dimensions of non-copyright and fair use weigh against the absolutist character of 1201(a)(1,2). 3. Assuming access is commercial access avoids at least some of the consitutional questions. 1201(a) is then a solution to the issue of compensating copyright owners at first sale when a copy is created after electronic transmission, rather than a single copy of a work being moved at first sale. 4. The player EULA disclaims the conveyance of *any* authority, so the pairing-of-keys argument you present has to explain the player-device EULA. 5. If a CSS player key can be revoked and authority removed after sale of the player there are a. Ex post facto questions. b. the word "requires" in 1201(a)(3)(B) has been read out of existence. 6. If one takes "access" as "de-encryption", it isn't clear why 1201(a) and 1201(b) are distinct sections with different tests in 1201(a)(3) and 1201(b)(2). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 22:23:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09178 for dvd-discuss-outgoing; Sun, 23 Jul 2000 22:23:19 -0400 Received: from dial191.roadrunner.com (dial191.cybermesa.com [209.12.75.191] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09175 for ; Sun, 23 Jul 2000 22:23:17 -0400 Received: (from paul@localhost) by dial191.roadrunner.com (8.8.7/8.8.7) id UAA03692 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 20:23:36 -0600 Date: Sun, 23 Jul 2000 20:23:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000723202334.B3057@localhost> References: <611C0CE12596D311B466009027D5E7591E4E79@c100.clearway.com> <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> <200007222019.QAA01242@soggy-fibers.ai.mit.edu> <20000722170607.A9282@eldritchpress.org> <200007231908.PAA03999@soggy-fibers.ai.mit.edu> <20000723164901.B9674@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000723164901.B9674@eldritchpress.org>; from eldred@eldritchpress.org on Sun, Jul 23, 2000 at 04:49:01PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 04:49:01PM -0400, Eric Eldred wrote: > On Sun, Jul 23, 2000 at 03:08:18PM -0400, Robert S. Thau wrote: > >... > > Agreed. So there's no ambiguity, I certainly don't agree with the > > positions that I've been imputing to the plaintiffs --- I've been > > arguing that they are misreading the law's reference to their > > authority for months. But it's still important to know their view, so > > we don't waste time, for instance, arguing a point like the lack of a > > contract between them and the end viewer which they are perfectly > > willing to concede. > > Yes, I believe your points are very good. > > Now, as far as a contract or license goes, to authorize or not > authorize DeCSS. And what licenses exist and what they say: > > In most respects, I believe that is irrelevant. It is really up > to the plaintiffs to show the licenses and what they say and > how they apply or don't apply to this case. They need to be able > to specify what conduct is illegal under a license or not. > > For example, it is quite possible that my earlier example of > a cable tv descrambler (being legal because the service is > paid for) might be an example of violation of the license > between the viewer and the cable system, or the content > copyright holder. (For example, the license might say for > some reason that I contract to pay rent on one Scientific-Atlanta > hardware box--God knows why such a license would ever be > written--but if I comply with that part of the contract, it > still remains to be seen if I can put some other box in > my system that is not mentioned by the contract.) You're assuming that the undefined word "access" in 1201(a) means essentially "de-encryption", "descrambling", whatever. The analysis of "authority" et al. break along the line of whether access is "commercially significant access" or simply descrambling. Taking "access" as descrambling leaves lots of overlap between 1201(a) and 1201(b), which the "commercially significant" definition doesn't do. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 22:53:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09346 for dvd-discuss-outgoing; Sun, 23 Jul 2000 22:53:15 -0400 Received: from dial191.roadrunner.com (dial191.cybermesa.com [209.12.75.191] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09343 for ; Sun, 23 Jul 2000 22:53:10 -0400 Received: (from paul@localhost) by dial191.roadrunner.com (8.8.7/8.8.7) id UAA03830 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 20:53:22 -0600 Date: Sun, 23 Jul 2000 20:53:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000723205320.C3057@localhost> References: <39771B59.A106FC79@debian.org> <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8l7cnl$j2v$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Thu, Jul 20, 2000 at 10:26:13AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 20, 2000 at 10:26:13AM -0700, David A. Wagner wrote: > Yes, and I have a gripe about statements made, I think, at the trial: that > "every encryption algorithm will be broken, sooner or later". That's a > common misperception, but there are very good reasons to believe that it's > just not true. (Of course, there's a kernel of truth in there -- namely, > that designing secure encryption algorithms is very hard to get right -- > but that's very different, and in this case, the difference is important!) I would like to add one point: There is always an O(1) "attack" against any CSS-like system called the "play" button. I'm not disagreeing with you, but I want to vociferously add the point that a discussion of breaking an algorithm should not be done without mentioning what real-world problem that algorithm is supposed to solve. Privacy? Nope. Anyone who wants to view the movie need only push and the play button (and agree to code-is-law restrictions on use). Authentication? Nope. Secret sharing? Nope. Copy control? Cryptography doesn't solve that problem, so "nope". However, a secret algorithm in conjunction with law is a big hammer to coerce people into signing agreements that limit the functionality of a player re: copying (whether the copying is legal or illegal). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 23:34:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10292 for dvd-discuss-outgoing; Sun, 23 Jul 2000 23:34:09 -0400 Received: from dial202.roadrunner.com (dial202.cybermesa.com [209.12.75.202] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10289 for ; Sun, 23 Jul 2000 23:34:06 -0400 Received: (from paul@localhost) by dial202.roadrunner.com (8.8.7/8.8.7) id VAA04086 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 21:34:12 -0600 Date: Sun, 23 Jul 2000 21:34:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000723213411.D3057@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 21, 2000 at 03:47:59PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 03:47:59PM -0700, Michael.A.Rolenz@aero.org wrote: > > Sadly....I think that's it. > > Look at DCMA. I've got to reread it to see if I missed something but it > seems to have some undefined terms like access control - what accesses are > being controlled. Which "access" is controlled depends on the day of the week and what the copyright owner feels like. Kaplan has on various occassions called 1201(a) (i) "prophylactic" to copyright infringement, and others has said (ii) roughly that "this is not an infringement suit". In the one case (i), fair use is relevant and in the other (ii), access can't be descrambling or any proxy for descrambling, it has to be something like "commercially significant access", i.e. forking up some dough to buy a disk or receive the transmission of a work. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 23:40:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10418 for dvd-discuss-outgoing; Sun, 23 Jul 2000 23:40:24 -0400 Received: from europe.std.com (europe-e.std.com [192.74.137.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10415 for ; Sun, 23 Jul 2000 23:40:23 -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 XAA23256; Sun, 23 Jul 2000 23:39:40 -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 XAA19976; Sun, 23 Jul 2000 23:38:47 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: References: Date: Sun, 23 Jul 2000 23:38:42 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] My impressions of the trial -- days 4 & 5 Content-Type: text/plain; charset="us-ascii" ; format="flowed" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu A Visit to the Twelfth Dimension By Arnold Reinhold I was in New York City for MacWorld last week (the G4 Cube is really cool), but I played hookey Thursday and Friday mornings to visit the MPAA v. DeCSS trial. I arrived too late for Jon Johanson's testimony, tho I was part of the crowd interviewing him at the morning break. Jon is the originator of DeCSS. He was 15 at the time. He is now 16 and working for an interactive TV company and plans to finish high school on his own, then go to France to study. Notable quotes: "Strange that one person can cause so much stir." "The only way to prevent piracy: reasonable prices, better products." One of his motivations was that Region 2 [Europe] DVDs lack the special features in Region 1 [US] releases. When I got into room 12D in the new Federal Courthouse at Foley Square, the MPAA's head of piracy investigations, Ms. Mikhail Reider, was testifying for the plaintiffs. The Judge was grilling her on just how an injunction would help the MPAA and whether a declaratory judgement that posting was illegal wouldn't suffice. She questioned whether any US Attorney of District attorney would be willing to prosecute. The Judge's comments show very deep skepticism about his ability to issue the injunction MPAA is seeking in this case. The witness did not seem to help. See http://www.eff.org/IP/Video/MPAA_DVD_cases/20000720_ny_trial_transcrip t.html (at the bottom of p. 673 ff) I then heard Ms. Reider's cross examination by Mr. Garbus. She was most uncooperative and generally couldn't remember anything, including whether she had written any reports on her investigation. After Garbus was through with her (and Kaplan was through with Garbus), the court broke for lunch. I could not stay for either afternoon session. The next day the Judge started by telegraphing his opinion on a line of testimony from Thursday. The defense, during Ms. Rider's cross, had tried to show that there were other technologies (e.g. DOD [Drink or Die] Ripper) that could have been used to produce the pirated material that she claims is now on the net. The Judge compared the argument with a classic law school case where two people fire a shotgun and only one shot hits a victim. Kaplan says it is each shooter's burden of proof to show that his shotgun was not the one that hit the victim. I then heard Eric Corley, the defendant, being cross examined by Mr. Gold. Gold asked if he couldn't have written "exactly the same article" without posting DeCSS. Corley stood his ground quite well. Gold also tried to paint Corley as an enemy of MPAA and DMCA. Judge Kaplan cut Gold off after a while saying "He has a right not to like this law and a right to say so. The question is whether he violated the law." At the end of cross, Garbus asked if Corley would remove the offending material if the court issued a declaratory judgement that it was illegal. Corley said we would. Gold then asked if he understood what a declaratory judgement is. I suspect from his answer that he did not. The judge was very interested in the notion that there were two kinds of links: those that went directly to the DeCSS program and downloaded it and those that went to a web site where DeCSS was offered. He specifically asked about "deep linking." I infer that he is thinking he might bar the former kind of link but not the latter. To me this is like saying you can reference a book but not give a page number. Next Prof. Larry Peterson testified as an expert on networks. The thrust of his testimony was that the Internet would take a long time to grow enough bandwidth to support large amounts of 650MB files being downloaded. The Judge took over the questioning at one point to get the witness to say the net has finite capacity now, lots of 650MB files would strain the net but that capacity could be added. The defense then tried to establish that a 100 fold increase in bandwidth would be needed and that it took the net 10 years for the last 100 fold increase. I didn't find the argument very strong. The Judge was obviously not impressed. Finally Prof. Peter Ravich (sp?) testified as an expert on video compression. The first part of his testimony was a very clear example of how helpful DeCSS would be to his research. His group writes software to index video and DVD are an unsurpassed source of good video once they are decrypted. His is a very narrow case but it was well made. He then went on to explain why compressing DVDs down to fit in a 650 MB file would produce results that the "average person would say stinks." He cited his experiments on the movie Contact. Judge Kaplan was clearly skeptical and indicated that he would watch the DivX sample provided by MPAA and form his own opinion. (Contact may be a poor example since it is so long. www.imdb.com says the US version is 153 minutes). The Judge also asked about Fractile compression and the "Genuine Fractile" product and seemed miffed that the witness hadn't heard of it. I must say I have a much higher opinion of Judge Kaplan after attending the trial. He is very sharp and does not tolerate sloppiness on either side. He is taking this case very seriously and seems to be trying to grasp the issues, even at the technical level. He seems to "get it." Judge Kaplan clearly doesn't think much of Mr. Garbus and seems to be trying to find a way to uphold the MPAA's position. I got the impression that he feels he could argue either side of this case better than the the lawyers and he may well be right. As he said "One of the great things about a nonjury trial is the judge gets to ask questions that are bothering him." He is not shy about doing that. I don't agree with him on many issues in this case, but I also think he will try to be fair in his own way. If I were on trial, I might want him as my judge. From what I saw, my guess is that Judge Kaplan will set a very low threshold for determining that DeCSS is a circumvention technology and that the limited evidence MPAA has produced will meet that threshold. I think he will want to rule that using DVD with Linux is also circumvention. That may be much harder for him. I think he will try to find a remedy other than injunction and I think he will try to distinguish between fully automatic links and links that go to a larger site. He seems to believe that Congress acted within its powers in writing DMCA and he clearly is aware that he is the first to enforce it. I think he wishes MPAA had given him a stronger case. Two comment I have: The wide availability of cheap, good quality digital camcorders makes it easy to get high grade video (I suspect good enough for DivX) by filming what is projected on the screen at a movie theater. Since such activity is impossible to control, DeCSS is irrelevant to piracy. If Internet DivX copies of movies become common, they can be expected to be available long before any DVD version is released. Also I think it is important to point out that a Linux DVD player is of no value in viewing downloaded DivX files. It can only be used to play conventional DVD, the vast majority of which will be legally purchased. I am glad I took the time to visit. The characters now have faces and personalities for me. These are interesting times. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 23:47:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10654 for dvd-discuss-outgoing; Sun, 23 Jul 2000 23:47:29 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10651 for ; Sun, 23 Jul 2000 23:47:27 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id WAA10985 for ; Sun, 23 Jul 2000 22:49:25 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Sun, 23 Jul 2000 23:46:47 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C4A@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Darth Wader Date: Sun, 23 Jul 2000 23:46:47 -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 Over the past few days, I have begun to see resemblances between Darth Wader and Kaplan. (no insult to Darth Wader intended) From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 23 23:48:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA10700 for dvd-discuss-outgoing; Sun, 23 Jul 2000 23:48:17 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA10697 for ; Sun, 23 Jul 2000 23:48:16 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id WAA10989 for ; Sun, 23 Jul 2000 22:50:14 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Sun, 23 Jul 2000 23:47:36 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C4B@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] RE: Darth Wader Date: Sun, 23 Jul 2000 23:47:35 -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 Sorry for the misspelling -- I mean Darth Vader. -----Original Message----- From: Anjul Srivastava Sent: Sunday, July 23, 2000 10:47 PM To: 'dvd-discuss@eon.law.harvard.edu' Subject: Darth Wader Over the past few days, I have begun to see resemblances between Darth Wader and Kaplan. (no insult to Darth Wader intended) From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 00:06:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11092 for dvd-discuss-outgoing; Mon, 24 Jul 2000 00:06:44 -0400 Received: from dial206.roadrunner.com (dial206.cybermesa.com [209.12.75.206] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11089 for ; Mon, 24 Jul 2000 00:06:41 -0400 Received: (from paul@localhost) by dial206.roadrunner.com (8.8.7/8.8.7) id WAA04500 for dvd-discuss@eon.law.harvard.edu; Sun, 23 Jul 2000 22:06:47 -0600 Date: Sun, 23 Jul 2000 22:06:46 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorization Message-ID: <20000723220645.E3057@localhost> References: <20000722153344.17463.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000722153344.17463.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Sat, Jul 22, 2000 at 08:33:44AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 22, 2000 at 08:33:44AM -0700, Bryan Taylor wrote: > --- Eric Eldred wrote: > > DMCA refers only to authorization from the copyright holder. > > But clearly there is another sort of authorization that is > > being confused with that in this case. I mean the authorization > > from DVD-CCA to reverse engineer their software, in order to > > make a DVD player for Linux. The two authorizations are very > > different. > > Yes, exactly. The act of descrambling is the only thing that the statue > give authority over to the copyright holder, and even this is subject > to the exceptions provided by 1201(f) and (g). And, as you know, only if the scrambling of the work protects "access", what ever the hell "access" may be. If the scrambling "protects" a licensing scheme that limits the kinds of players that may be built, then that isn't an issue of commercially significant access. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 00:15:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11232 for dvd-discuss-outgoing; Mon, 24 Jul 2000 00:15:17 -0400 From: owner-dvd-discuss@eon.law.harvard.edu Message-Id: <200007240415.AAA11232@eon.law.harvard.edu> Date: Sat, 22 Jul 2000 12:06:20 -0400 To: owner-dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] BOUNCE dvd-discuss@eon.law.harvard.edu: Admin request of type /^sub\b/i at line 7 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 Sat Jul 22 12:06:19 2000 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 MAA19949 for ; Sat, 22 Jul 2000 12:06:18 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id KAA10658 for ; Sat, 22 Jul 2000 10:05:33 -0600 Date: Sat, 22 Jul 2000 10:05:33 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 4 In-Reply-To: <20000720170724.E594@zork.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII You want that as a case study, or as a survey? So long as I get co-author on it, I'll run it, maybe even get a few of my advisors signing on... John Galt Undergrad in Anthropology (linguistics actually, but it's classed as a sub-field around here) On Thu, 20 Jul 2000, Seth David Schoen wrote: > John Schulien writes: > > > > [Kaplan] said, "... What I do might help prevent > > > another horse from escaping but not DeCSS." > > > > ... which is completely wrong. Nothing he says or > > does will prevent the next horse from escaping, > > or aid its escape. He is, however, determining > > whether escaped horses are outlaw horses, or > > liberated horses. > > > > "Escaped horses" meaning "trade secrets > > discovered through reverse engineering." > > I think that the pre-1201 answer would be, > > "liberated horses." > > > > I hope he doesn't think that his decision will > > change the behavior of 16 year olds the > > world over ... is he a parent? > > It's about making the horses afraid to leave, more than about locking > them up -- litigators, remember, rather than alligators. You can > train animals to stay within certain boundaries by setting up an > electric fence and letting them experiment with it for a while -- even > if you later turn off the electricity, the fear effect will keep them > from crossing the line in time to come. > > Kaplan's decision sets a precedent (of various strengths in various > places). If there is a clear precedent that decryption software can > be banned under the DMCA and people punished for publishing it, lots > and lots of people -- obviously not _everybody_ -- will be afraid and > their speech chilled. > > Precedential value, and making an example of someone (like Emmanuel), > isn't ever all-or-nothing in its effect on third parties' future > behavior. Instead, it's always statistical. Those statistics may be > important enough for the MPAA to spend vast amounts of money on > influencing them. > > I'd speculate that underground security research which affects > copyright interests somehow has already been chilled quite a bit from > the fear inspired by this lawsuit. It's really hard to measure that, > though -- are we supposed to wander around at Defcon asking people > "Did _Universal v. Reimerdes_ scare you out of starting some project > which you might otherwise have been interested in?" or post surveys on > BUGTRAQ and cypherpunks? > > There is just no way to know. But I go to Linux user group meeting > and people say they're scared, and that crowd is hardly the 'leet > underground or anything. Never mind the waves of fear, trembling, and > anger that percolate through the mass of black-clad teenagers and > computer security journalists at 2600 meetings. > > Fear and statistics, fear and statistics. Judge Kaplan can at most > make a martyr out of Emmanuel (increasing the number of mirror sites > worldwide), and maybe try to restrict "persons in active concert or > participation with him" (which would raise exactly the same issue as > the Mattel case James Tyre mentions). But the "real" effect would be > to make the public more fearful of crossing copyright holders with the > technical information they publish. > > "Oderint," I see Jack Valenti saying, "dum metuant." > > -- I can be immature if I want to, because I'm mature enough to make my own decisions. Who is John Galt? galt@inconnu.isu.edu From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 00:44:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA11439 for dvd-discuss-outgoing; Mon, 24 Jul 2000 00:44:05 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA11436 for ; Mon, 24 Jul 2000 00:44:04 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id AAA05311; Mon, 24 Jul 2000 00:44:17 -0400 Message-ID: <397BC9A1.6FCE1552@mit.edu> Date: Mon, 24 Jul 2000 00:44:17 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 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 "Arnold G. Reinhold" wrote: > The next day the Judge started by telegraphing his opinion on a line > of testimony from Thursday. The defense, during Ms. Rider's cross, > had tried to show that there were other technologies (e.g. DOD [Drink > or Die] Ripper) that could have been used to produce the pirated > material that she claims is now on the net. The Judge compared the > argument with a classic law school case where two people fire a > shotgun and only one shot hits a victim. Kaplan says it is each > shooter's burden of proof to show that his shotgun was not the one > that hit the victim. But in this case we are trying to hold the gun distributors or gun manufacturers liable, not the shooters (no one has alleged that the defendant has copied DVDs). In that case pointing out one gun is heavy, difficult to aim and hard to reload and that others are light, have targeting sensors and ammo clips certainly suggests something about which gun shooters will pick up (and, therefore, shoot with). Thanks for the update! I hope it holds me until the 7/21 transcripts are up. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 02:08:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA11893 for dvd-discuss-outgoing; Mon, 24 Jul 2000 02:08:44 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA11890 for ; Mon, 24 Jul 2000 02:08:43 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id BAA12839 for ; Mon, 24 Jul 2000 01:07:41 -0500 Message-ID: <397BD9CF.296AE590@mninter.net> Date: Mon, 24 Jul 2000 00:53:19 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 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 "Arnold G. Reinhold" wrote: > Next Prof. Larry Peterson testified as an expert on networks. The > thrust of his testimony was that the Internet would take a long time > to grow enough bandwidth to support large amounts of 650MB files > being downloaded. The Judge took over the questioning at one point > to get the witness to say the net has finite capacity now, lots of > 650MB files would strain the net but that capacity could be added. > The defense then tried to establish that a 100 fold increase in > bandwidth would be needed and that it took the net 10 years for the > last 100 fold increase. I didn't find the argument very strong. The > Judge was obviously not impressed. Someone might want to remind the defense that there is a significant difference between aggregate internet bandwidth and an individual's bandwidth to their ISP. At least from this retelling, it sounds as if they were testifying about internet bandwidth as a whole, but ignoring the fact that the internet could operate at the speed of light, but it would not speed my 56k modem one iota. And 56k modems is whats people's gots. I guess I'll have to read the transcript to be sure. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 02:48:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA12435 for dvd-discuss-outgoing; Mon, 24 Jul 2000 02:48:41 -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 CAA12432 for ; Mon, 24 Jul 2000 02:48:39 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6O6lvL07025 for ; Mon, 24 Jul 2000 09:47:58 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Mon, 24 Jul 2000 09:47:57 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <200007240132.VAA18777@emperor.hwrd1.md.home.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 Jul 2000, Jim Bauer wrote: >I disagree. Society is moving much faster now then it did when >copyrights were first created. My thoughts exactly: Internet time happens on a cycle of three months instead of decades. >are "essentially forever". By the time the government granted >monopoly expires and the work in finally placed into the public >domain, it has most likely long since become obsolete. Especially since copyright is most suited to the protection of software and artistic creation, which are the least durable of IP of our time. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 03:54:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA13253 for dvd-discuss-outgoing; Mon, 24 Jul 2000 03:54:38 -0400 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA13250 for ; Mon, 24 Jul 2000 03:54:37 -0400 Received: from [12.88.194.102] ([12.88.194.37]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000724075353.OUER6710.mtiwmhc22.worldnet.att.net@[12.88.194.102]> for ; Mon, 24 Jul 2000 07:53:53 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Mon, 24 Jul 2000 03:53:37 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Day 5 Trial Transcript Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The transcript of court proceedings from day 4 is now available at: http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000721_ny_tr ial_transcript.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 04:01:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA13416 for dvd-discuss-outgoing; Mon, 24 Jul 2000 04:01:49 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA13412 for ; Mon, 24 Jul 2000 04:01:36 -0400 Date: Mon, 24 Jul 2000 00:58:38 -0700 Message-Id: <200007240058.AA2243887638@mail.virtualrecordings.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Robin Gross" To: , , Subject: [dvd-discuss] REVEALED: DeCSS Led to Competing Linux DVD Player X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: July 21, 2000 Universal City Studios v. 2600 Magazine REVEALED: DeCSS Led to Competing Linux DVD Player EFF's defense team landed a surprising blow to the MPAA in Court on Friday when it revealed that the Livid Project has built an open source DVD player for Linux machines using DeCSS. Livid (short for Linux Video) Project leader Matt Pavlovich testified for the defense that his group had been working for months to create a way for Linux users to watch the DVDs they own on the machines that they own. Pavlovich testified that DeCSS was an important step in creating the Linux DVD player and offered to perform an in-court demonstration of his important new innovation. Although the studios' lawyers objected to the Livid player demonstration as "irrelevant," the MPAA conceded they would not contest the existence of the independently created DVD player. Pavlovich stated the Livid Project's DVD player was created by lawful reverse engineering under the open source development model, which relies upon dozens to thousands of programmers around the globe working collaboratively. DVD players such as Livid's, manufactured independently from DVD-CCA and the MPAA, are not legally required to restrict consumer player features because they are not subject to a CSS license. Through this litigation the studios were hoping to ban DeCSS before independent groups used the code to create consumer-friendly DVD players that could compete with DVD-CCA's monopoly on players. EFF's defense team will continue on Tuesday to present its witnesses including Chris DiBona, President of the Silicon Valley Linux Users' Group and VA Linux Evangelist. Judge Lewis Kaplan's court is in recess on Monday July 23, 2000. Other witnesses EFF plans to call include Andrew Appel, a Princeton University computer science professor and Michael Einhorn, Columbia University economist. EFF may recall MPAA anti-piracy official Mikail Reider who testified last week against Journalist Emmanuel Goldstein and his publication 2600.com. Carnegie Melon computer science professor Dave Touretzky and Olegario Craig of the University of Massachusetts may also be called to testify in the trial which should end Tuesday or Wednesday of this week. Transcript of July 21, 2000 trial: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000721_ny_trial_transcript.html An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ ------------------------------------------------------------------ The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 04:42:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA13810 for dvd-discuss-outgoing; Mon, 24 Jul 2000 04:42:02 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA13807 for ; Mon, 24 Jul 2000 04:41:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id EAA10552 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 04:43:54 -0400 Date: Mon, 24 Jul 2000 04:43:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724044349.B10510@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from rongus@tiac.net on Sun, Jul 23, 2000 at 07:36:48PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 07:36:48PM -0400, Ron Gustavson wrote: > On Sat, 22 Jul 2000 13:08:04 -0700, Jim Taylor wrote: > > >I keep seeing people say that it's Hollywood's fault for not improving the > >system for the last three years. Doesn't this seem like an unreasonable > >expectation? CSS had already caused plenty of problems (delayed players, > >delayed drives, added expense). Was Hollywood supposed to make players > >obsolete every 6 months with new versions of CSS? Or should they make 11 > >million players obsolete now that CSS has been hacked? It's really DVD-CCA's fault. Insteading of realizing their mistakes, they did what failing organizations do. They called out the lawyers, circled around the flag, denied everything, flew back from the golf course in their corporate jets, and tried to shoot the messengers. Yes, in the beginning they should have been smarter about security. They should have gone open source and got peer review. They should have used a longer key and gone to the government to get permission to export. They should not have made software players. There are a whole lot of things they now no doubt realize they should have done. But it's never too late to admit your mistakes and start over. Look at similar situations--Three Mile Island was the end of the U.S. nuclear industry, for example, where that industry tried to do exactly the same thing as the MPAA and DVD-CCA are doing now. The professors will be teaching this for years to come, how not to write a computer program. But the real question is, will the students in business schools learn it, will the future politicians understand what's happening? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 04:45:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA14064 for dvd-discuss-outgoing; Mon, 24 Jul 2000 04:45:02 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA14036 for ; Mon, 24 Jul 2000 04:44:49 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id EAA10569 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 04:47:13 -0400 Date: Mon, 24 Jul 2000 04:47:08 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724044708.C10510@eldritchpress.org> References: <200007240132.VAA18777@emperor.hwrd1.md.home.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007240132.VAA18777@emperor.hwrd1.md.home.com>; from jfbauer@home.com on Sun, Jul 23, 2000 at 09:32:57PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 09:32:57PM -0400, Jim Bauer wrote: > Michael.A.Rolenz@aero.org wrote: > > > >Supersedes does not mean repeal. It's a general principle of the law that > >one cannot have conflicting laws. As someone pointed out in an earlier > >posting, IF there is some interpretation that does eliminate the conflict, > >that has to be the way the laws are interpreted. If they violate the > >Sherman Anti-Trust law, then they cannot also claim DMCA as a defense. > > > > But I agree with you that the issue here is "indefinite intellectual > >property" and that's a CONSTITUTIONAL question. The fact that the > >mechanism they are using is a Trust is the means they are using. It may be > >the means of dealing with them too. I wasn't aware until yesterday what > >the period on copyrights was. I can see changing the copyright period from > >28 to 50 yrs. That makes sense since people are living longer. It's > >reasonable to increase the copyright period to cover their lives and to > >give their children some benefits > > I disagree. Society is moving much faster now then it did when > copyrights were first created. I believe it is imperative that > copyright be for much short term then even 28 years. The same > goes for patents as well. Currently copyright and patent terms > are "essentially forever". By the time the government granted > monopoly expires and the work in finally placed into the public > domain, it has most likely long since become obsolete. Where > in the constitution does it say workes sould be monopolized until > they no longer have any value? When you guys wake up after THIS trial, mosey on over to the other site at eon.law.harvard.edu and help out with MY trial, to overturn the Sonny Bono Copyright Term Extension Act. You can help at Open Law with the written briefs and there will be oral arguments in October in D.C. at the Court of Appeals. Thanks! -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 04:51:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA14208 for dvd-discuss-outgoing; Mon, 24 Jul 2000 04:51:31 -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 EAA14205 for ; Mon, 24 Jul 2000 04:51:27 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13Gdwi-0005dM-00; Mon, 24 Jul 2000 10:50:44 +0200 Received: from localhost by sites.inka.de with local id 13Gdwi-0003ts-00; Mon, 24 Jul 2000 10:50:44 +0200 Date: Mon, 24 Jul 2000 10:50:44 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Day 5 Trial Transcript Message-ID: <20000724105044.A13667@inka.de> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from eddank@eff.org on Mon, Jul 24, 2000 at 03:53:37AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Refering to the demonstration of the LiViD player requested by the defence: 13 THE COURT: How long is it going to take, Mr. 14 Hernstadt? 15 MR. HERNSTADT: The demonstration? 16 THE COURT: Yes. 17 MR. HERNSTADT: A few minutes. 18 THE COURT: Relax, Mr. Cooper. Can anyone who was there shed some light on that last line? Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 04:59:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA14637 for dvd-discuss-outgoing; Mon, 24 Jul 2000 04:59:45 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA14629 for ; Mon, 24 Jul 2000 04:59:33 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id FAA10593 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 05:01:57 -0400 Date: Mon, 24 Jul 2000 05:01:51 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724050151.D10510@eldritchpress.org> References: <20000722104733.A12685@ramtop.demon.co.uk> <200007221445.KAA00351@soggy-fibers.ai.mit.edu> <20000722162928.A14663@ramtop.demon.co.uk> <200007221555.LAA00602@soggy-fibers.ai.mit.edu> <20000722173719.A15227@ramtop.demon.co.uk> <200007222019.QAA01242@soggy-fibers.ai.mit.edu> <20000722170607.A9282@eldritchpress.org> <200007231908.PAA03999@soggy-fibers.ai.mit.edu> <20000723164901.B9674@eldritchpress.org> <20000723202334.B3057@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000723202334.B3057@localhost>; from fenimore@roadrunner.com on Sun, Jul 23, 2000 at 08:23:35PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 08:23:35PM -0600, Paul Fenimore wrote: >[...] > You're assuming that the undefined word "access" in 1201(a) > means essentially "de-encryption", "descrambling", whatever. > The analysis of "authority" et al. break along the line > of whether access is "commercially significant access" or > simply descrambling. Taking "access" as descrambling leaves > lots of overlap between 1201(a) and 1201(b), which the > "commercially significant" definition doesn't do. Well, whichever "access" means, or "authority", it would seem that "commercially significant" access is something that normal copyright law can cover--for example, the prohibition against showing a video tape to a crowd that you charge admission for. You don't need special law to cover that, but if you are writing a copyright law you do need to distinguish commercial use from private use, because you want to give authorization to the user to use the work. That's why it seems reasonable to me to include all that with the first sale of the disc. It's true that the definition of "access" is undefined and unclear. The MPAA seems to wish to identify "access control mechanism" with encryption and scrambling, and circumvention with descrambling. But that doesn't seem to me reasonable. Because then it's never at all clear what authorized access would be except using only the MPAA/DVD-CCA authorized players, and as others have pointed out, the players don't come with licenses authorizing anything (since the MPAA assumed the players could never be constructed, or would be suppressed as cable descrambler boxes are). Note, however, that DeCSS works with an authorized DVD disc and an authorized player, so they will have to turn cartwheels to explain this. Of course, if they can produce licenses and some legislative history to prove their points, all the more power to them. It will sufficiently demonstrate on appeal that the DMCA is an unconstitutional copyright law that establishes a monopoly restraint of trade in opposition to the Constitution's Article I Section 8. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 05:19:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA14773 for dvd-discuss-outgoing; Mon, 24 Jul 2000 05:19:34 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA14770 for ; Mon, 24 Jul 2000 05:19:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id FAA10614 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 05:21:46 -0400 Date: Mon, 24 Jul 2000 05:21:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 5 Message-ID: <20000724052141.E10510@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Sun, Jul 23, 2000 at 11:38:42PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 11:38:42PM -0400, Arnold G. Reinhold wrote: > A Visit to the Twelfth Dimension > > By Arnold Reinhold >[...] > The next day the Judge started by telegraphing his opinion on a line > of testimony from Thursday. The defense, during Ms. Rider's cross, > had tried to show that there were other technologies (e.g. DOD [Drink > or Die] Ripper) that could have been used to produce the pirated > material that she claims is now on the net. The Judge compared the > argument with a classic law school case where two people fire a > shotgun and only one shot hits a victim. Kaplan says it is each > shooter's burden of proof to show that his shotgun was not the one > that hit the victim. But the witness also said--and this bears repeating--that there is no evidence at all that DeCSS is used in this process, and the plaintiffs had to stipulate that point. There is no sense in the judge's joke about two people firing a shotgun, unless you can prove that two shotguns were actually fired instead of one. With shotguns that could be proved with forensic exams; why can't the studios prove it, given the money they pay to their investigators? > The judge was very interested in the notion that there were two kinds > of links: those that went directly to the DeCSS program and > downloaded it and those that went to a web site where DeCSS was > offered. He specifically asked about "deep linking." I infer that he > is thinking he might bar the former kind of link but not the latter. > To me this is like saying you can reference a book but not give a > page number. Take a look at Carl Kaplan's NYT column and see where he links at the bottom. Do you think it is any different from 2600? > Next Prof. Larry Peterson testified as an expert on networks. The > thrust of his testimony was that the Internet would take a long time > to grow enough bandwidth to support large amounts of 650MB files > being downloaded. The Judge took over the questioning at one point > to get the witness to say the net has finite capacity now, lots of > 650MB files would strain the net but that capacity could be added. > The defense then tried to establish that a 100 fold increase in > bandwidth would be needed and that it took the net 10 years for the > last 100 fold increase. I didn't find the argument very strong. The > Judge was obviously not impressed. I have a cable modem. Many cable modems will now be part of the AOL/Netscape/Time-Warner empire. Do you imagine that such a network would not be able to find a way to identify downloads of network-hogging video files and either cut them off or cut off the customers who do it? > Finally Prof. Peter Ravich (sp?) testified as an expert on video > compression. The first part of his testimony was a very clear example > of how helpful DeCSS would be to his research. His group writes > software to index video and DVD are an unsurpassed source of good > video once they are decrypted. His is a very narrow case but it was > well made. > > He then went on to explain why compressing DVDs down to fit in a 650 > MB file would produce results that the "average person would say > stinks." He cited his experiments on the movie Contact. Judge Kaplan > was clearly skeptical and indicated that he would watch the DivX > sample provided by MPAA and form his own opinion. (Contact may be a > poor example since it is so long. www.imdb.com says the US version is > 153 minutes). The Judge also asked about Fractile compression and > the "Genuine Fractile" product and seemed miffed that the witness > hadn't heard of it. What is the relevance of fractal compression? The studios claim that DeCSS allows "bit-for-bit" copying. But they have not shown that here. The only way DVD copies could practically be distributed is with lossy compression. Some DVD players apparently allow one to send to videotape the output. Decryption is only one of many ways to "pirate" a DVD. > I must say I have a much higher opinion of Judge Kaplan after > attending the trial. He is very sharp and does not tolerate > sloppiness on either side. He is taking this case very seriously and > seems to be trying to grasp the issues, even at the technical level. > He seems to "get it." I think he should be a better listener. He is too sharp. He seems to have preconceptions and then interrupt to determine whether or not his preconceptions are true--if they are, he is pleased with himself. But he risks cutting off testimony that would either be important for the plaintiffs to prove, because he assumes in his mind they have proved it, or testimony for the defense, which may be important for appeal. But it's good to hear from an eyewitness. Myself, I have to wait for the movie. So I want to know which actor/actress you want in which role? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 11:10:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23063 for dvd-discuss-outgoing; Mon, 24 Jul 2000 11:10:12 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA23060 for ; Mon, 24 Jul 2000 11:10:10 -0400 Received: by aero.org id <17111-2>; Mon, 24 Jul 2000 08:09:18 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdITAa07883; Mon Jul 24 08:09:14 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 08:08:47 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 08:08:46 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 08:09:17 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can almost imagine a huge database at every DVD stand where you check your player against the title. Of course if it's out of date or you make a mistake - Caveat Emptor. Phil Harrison @eon.law.harvard.edu on 07/23/2000 01:47:17 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Sat, Jul 22, 2000 at 01:00:47PM -0700, Michael.A.Rolenz@aero.org wrote: > > That's an interesting point. The whole concept of being able to revoke > player keys would seem to violate the Uniform Commercial Code Section 2-314 > > Goods to be merchantable must be at least such as > > (c) are fit for the ordinary purposes for which such goods are > used; > > it seems obvious that the "ordinary purpose" of buying a DVD is to play it. > So...If I buy a player and they revoke the keys then ANY DVD that they sell > after revoking the keys cannot be played by the thousands of people who > previously purchased them in good faith. It's not "fit for the ordinary > purpose" > > Now try this hypothetical....suppose the player maker gets BACK into their > good graces.Do they give him a New key so that now they have a bunch of > disks that can't be played on the old players but only on the new ones? Or > do they give him back the old key so that the disks sent out while the > player maker was our of favor? If this happens three or four times what > disks work on what machines and when do they work (e.g., model XX shipped > between 11May2000 and 15May2000 will not work) could get to be a real > nightmare to keep it all straight. > I am wondering how the consumer is supposed to know whether or not a given disk has the keys for their player when they buy that disk. Can the plaintiffs really claim that they are only authorising access to the copyrighted work using an authorised player if they are not informing the consumer which players are still authorised to play that particular disk? Because if this claim doesn't hold up, could it be argued that the consumer is not restricted to using authorised players to access the copyrighted work? In which case, wouldn't this invalidate the circumvention argument, since the user would be authorised to access the DVD? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 11:13:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23128 for dvd-discuss-outgoing; Mon, 24 Jul 2000 11:13:05 -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 LAA23123 for ; Mon, 24 Jul 2000 11:13:03 -0400 Received: by waltz.rahul.net (Postfix, from userid 4001) id 697FE99C80; Mon, 24 Jul 2000 08:12:21 -0700 (PDT) Received: from localhost (localhost [127.0.0.1]) by waltz.rahul.net (Postfix) with ESMTP id 3F702938C0 for ; Mon, 24 Jul 2000 08:12:21 -0700 (PDT) Date: Mon, 24 Jul 2000 08:12:21 -0700 (PDT) From: Ken Arromdee To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] REVEALED: DeCSS Led to Competing Linux DVD Player In-Reply-To: <200007240058.AA2243887638@mail.virtualrecordings.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, 24 Jul 2000, Robin Gross wrote: > players such as Livid's, manufactured independently from DVD-CCA and the >MPAA, are not legally required to restrict consumer player features because >they are not subject to a CSS license. Through this litigation the studios >were hoping to ban DeCSS before independent groups used the code to create >consumer-friendly DVD players that could compete with DVD-CCA's monopoly on >players. Well, I'm glad *someone* gets the idea, anyway. I've been surprised how many pro-DeCSS articles did not. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 11:20:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23525 for dvd-discuss-outgoing; Mon, 24 Jul 2000 11:20:03 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA23522 for ; Mon, 24 Jul 2000 11:20:00 -0400 Received: by aero.org id <17120-6>; Mon, 24 Jul 2000 08:19:00 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdUXAa07883; Mon Jul 24 08:18:52 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 08:18:23 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 08:18:22 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 08:18:57 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The whole idea of being able to revoke a key really puts a new spin on "planned obsolecence". I'm glad they only put in 400 keys. Presumably the consumer is still authorized to play disks that they purchased previously but they will no longer be authorized to play any disks released after the key was revoked. At that point, the only way to be authorized is to go out and buy another player. Eric Eldred @eon.law.harvard.edu on 07/23/2000 10:01:41 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Sun, Jul 23, 2000 at 09:28:18AM +0100, Phil Harrison wrote: > >... > I am wondering how the consumer is supposed to know whether or not a given disk > has the keys for their player when they buy that disk. Can the plaintiffs really > claim that they are only authorising access to the copyrighted work using an > authorised player if they are not informing the consumer which players are still > authorised to play that particular disk? > > Because if this claim doesn't hold up, could it be argued that the consumer is > not restricted to using authorised players to access the copyrighted work? In > which case, wouldn't this invalidate the circumvention argument, since the user > would be authorised to access the DVD? There is another point here. Suppose the avid Meg Ryan fan buys a DVD and a player. Suppose the player keys are subsequently revoked, so that particular player is no longer "authorized." In what sense is the fan not "authorized" to continue playing the DVD on her player? Now, it may be true that subsequent DVDs come with new keys and that they may not therefore contain sufficient "authorization" for her to play them. But that is a matter of the technology, the access control mechanism to enforce. I can't see any way that her continuing to play a valid DVD on such a player would be "unauthorized" under law if she could do so technically. I think the "authorization" has to come from owning the disc itself, not from some separate "authorization" from DVD-CCA that the consumer nevers gets nor has to get. Otherwise it is not sufficient to revoke the keys. The DVD-CCA would should have to go to court and ask that all the "unauthorized" players be seized in violation of the DMCA. But if that is true, then DeCSS is no more a circumvention than is playing a valid DVD on a player with keys revoked. Because DeCSS works exactly the same way, by a user of a valid DVD and a valid player being able to play the DVD on a player that is not "authorized," i.e., Linux. All this seems too simple now. Where have I gone wrong? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 11:24:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA23690 for dvd-discuss-outgoing; Mon, 24 Jul 2000 11:24:15 -0400 Received: from dial66.roadrunner.com (dial66.cybermesa.com [209.12.75.66] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA23687 for ; Mon, 24 Jul 2000 11:24:12 -0400 Received: (from paul@localhost) by dial66.roadrunner.com (8.8.7/8.8.7) id JAA00796 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 09:24:27 -0600 Date: Mon, 24 Jul 2000 09:24:26 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724092425.A545@localhost> References: <20000724044349.B10510@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000724044349.B10510@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Jul 24, 2000 at 04:43:49AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 04:43:49AM -0400, Eric Eldred wrote: > On Sun, Jul 23, 2000 at 07:36:48PM -0400, Ron Gustavson wrote: > > On Sat, 22 Jul 2000 13:08:04 -0700, Jim Taylor wrote: > > > > >I keep seeing people say that it's Hollywood's fault for not improving the > > >system for the last three years. Doesn't this seem like an unreasonable > > >expectation? CSS had already caused plenty of problems (delayed players, > > >delayed drives, added expense). Was Hollywood supposed to make players > > >obsolete every 6 months with new versions of CSS? Or should they make 11 > > >million players obsolete now that CSS has been hacked? > > It's really DVD-CCA's fault. Insteading of realizing their > mistakes, they did what failing organizations do. They > called out the lawyers, circled around the flag, denied > everything, flew back from the golf course in their > corporate jets, and tried to shoot the messengers. > > Yes, in the beginning they should have been smarter about > security. They should have gone open source and got peer ^^^^^^^^^^^ > review. They should have used a longer key and gone to > the government to get permission to export. They should > not have made software players. There are a whole lot of > things they now no doubt realize they should have done. What function would CSS serve if the algorithm is public? The key-"management" would have to change, because the current function of CSS is not to "protect" a copyrighted work. The function is to be a secret that requires one to sign an NDA to build useful DVD players. None of the "copy protection" features depends on the crypto directly. Instead those features depend on the license one signs to get the "secret" CSS algorithm without being sued. Once the key-management is changed and the algorithm is public, the current use of CSS on stored-data would be pointless. Anyone who bought a disk, would also get a key too. The only use for 1201(a) that I can come up with that half-way makes sense is that it allows "copy-less" distribution of works. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 11:39:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA24808 for dvd-discuss-outgoing; Mon, 24 Jul 2000 11:39:44 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA24805 for ; Mon, 24 Jul 2000 11:39:41 -0400 Received: by aero.org id <17112-5>; Mon, 24 Jul 2000 08:38:31 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdYGAa15265; Mon Jul 24 08:38:06 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 08:37:43 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 08:37:42 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 08:38:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I agree that the current copyright laws are practically "forever" and should not be. There's no reason for corporations to have copyrights for 100yrs or even the 3rd or 4th generation of descendants from the creator. But I cannot see any reason why copyright should be less than 28yrs. Few writers of fiction and music actually have best sellers but many earn a comfortable living later in life from the residuals from a lifetime of work. There are few things I can think of that are copyrighted that are critical that they go into the public domain as fast as possible. Actually, I can't think of anything that is critical. Patents are for 17 years. I don't think that's unreasonable either. What is unreasonable is what can get patented these days. TRW patented satellite orbits and used them as a club. RSA's patent expired a few years ago I believe (or will expire soon). That's hardly obsolete. Jim Bauer @eon.law.harvard.edu on 07/23/2000 06:47:18 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in Michael.A.Rolenz@aero.org wrote: > >Supersedes does not mean repeal. It's a general principle of the law that >one cannot have conflicting laws. As someone pointed out in an earlier >posting, IF there is some interpretation that does eliminate the conflict, >that has to be the way the laws are interpreted. If they violate the >Sherman Anti-Trust law, then they cannot also claim DMCA as a defense. > > But I agree with you that the issue here is "indefinite intellectual >property" and that's a CONSTITUTIONAL question. The fact that the >mechanism they are using is a Trust is the means they are using. It may be >the means of dealing with them too. I wasn't aware until yesterday what >the period on copyrights was. I can see changing the copyright period from >28 to 50 yrs. That makes sense since people are living longer. It's >reasonable to increase the copyright period to cover their lives and to >give their children some benefits I disagree. Society is moving much faster now then it did when copyrights were first created. I believe it is imperative that copyright be for much short term then even 28 years. The same goes for patents as well. Currently copyright and patent terms are "essentially forever". By the time the government granted monopoly expires and the work in finally placed into the public domain, it has most likely long since become obsolete. Where in the constitution does it say workes sould be monopolized until they no longer have any value? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 12:10:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA25729 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:10:41 -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 MAA25666 for ; Mon, 24 Jul 2000 12:10:39 -0400 Message-ID: <20000724160929.11318.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Mon, 24 Jul 2000 09:09:29 PDT Date: Mon, 24 Jul 2000 09:09:29 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Kaplan asks what the open source communicty is To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Here's an interesting dialoug from the Friday transcript. Corley was on the stand and Gold was asking him questions on cross. If we submit another amicus, we should explain that we are part of the open source community, and that this basically is the public engaging cooperatively in open development using licences that assure that development will remain public. p828 7 Q. Is it fair to say that the hacker community in the United 8 States is following this trial carefully? 9 A. I would say the hacker community, open source community, 10 the Linux community, yes. 11 THE COURT: What do you mean by the open source 12 community? 13 THE WITNESS: The open source community is basically 14 people who write software, release the source code, share 15 information, it overlaps into the Linux world. I am actually 16 not a part of that community. I didn't know much about that 17 community before this case. 18 THE COURT: OK, thank you. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 12:15:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA26000 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:15:42 -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 MAA25997 for ; Mon, 24 Jul 2000 12:15:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4KK>; Mon, 24 Jul 2000 09:15:08 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D32@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Mon, 24 Jul 2000 09:15:07 -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: Ron Gustavson [mailto:rongus@tiac.net] > Sent: Saturday, July 22, 2000 8:20 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > Eric Eldred wrote: > > >Now, the authorization from the copyright holder to use the > >content has to come at the time of purchase of the DVD. > >There is no other way it could except at first sale. And > >this authorization comes complete with the ability to use > >the content, to play the disc, and to decrypt the content, > >as necessary. (We will leave aside for a moment the question > >of fair use.) If not, there is no sense in authorization. > > This is of course the logical conclusion, leaving aside the omerta > aspects of the CSS license. > > But Kaplan has suggested that the buyer only buys a piece of > plastic (let's call that polycarbonate laminated over foil.) What > happens if the operator was sleeping, the replicating machine > burped and the disc was never pressed (ie. no movie on this one?) > Can the buyer ask for a refund if there is no contract or agreement > to a copy of the content on the disc? Isn't that a point of > copyright, > that you can buy a copy? > Copyright law talks about the WORK being FIXED IN A MEDIUM. The MEDIUM is the polycarbonate disc. You still need to account for the WORK, Judge Kaplan. -- -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 Jul 24 12:30:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27204 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:30:21 -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 MAA27201 for ; Mon, 24 Jul 2000 12:30:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4K3>; Mon, 24 Jul 2000 09:29:47 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D33@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Mon, 24 Jul 2000 09:29:46 -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: Seth David Schoen [mailto:schoen@loyalty.org] > Sent: Friday, July 21, 2000 5:33 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Here's a good site for info. > > > John Zulauf writes: > > > But both keys are welded into their respective locks. If I > weld the door > > key and the deadbolt key into my knob and deadbolt > respectively I have TWO > > knobs but still no locks. The key for the player is on the > player and the > > key for the title is on the title. > > > But human beings can't read object code! Only computers can read > object code! > > But, with the keys welded into the locks, they will ALWAYS perform the same action (playing the content). There is no check, no possibility of refusal. The keys are present, the content plays. Therefore: access is not controlled. One exception: if a player key is revoked, then DVDs pressed after the revocation will not play on that brand of player. But this is not access control at the user level, this is DVD PLAYER MANUFACTURER control, which is a marketplace concern and not a copyright 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 Mon Jul 24 12:30:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27215 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:30:38 -0400 Received: from dial130.roadrunner.com (dial130.cybermesa.com [209.12.75.130] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA27211 for ; Mon, 24 Jul 2000 12:30:33 -0400 Received: (from paul@localhost) by dial130.roadrunner.com (8.8.7/8.8.7) id KAA01113 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 10:30:45 -0600 Date: Mon, 24 Jul 2000 10:30:43 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724103043.B545@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Mon, Jul 24, 2000 at 08:38:15AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 08:38:15AM -0700, Michael.A.Rolenz@aero.org wrote: > > I agree that the current copyright laws are practically "forever" and > should not be. There's no reason for corporations to have copyrights for > 100yrs or even the 3rd or 4th generation of descendants from the creator. > But I cannot see any reason why copyright should be less than 28yrs. Few > writers of fiction and music actually have best sellers but many earn a > comfortable living later in life from the residuals from a lifetime of > work. There are few things I can think of that are copyrighted that are > critical that they go into the public domain as fast as possible. Actually, > I can't think of anything that is critical. > > Patents are for 17 years. I don't think that's unreasonable either. What is > unreasonable is what can get patented these days. TRW patented satellite > orbits and used them as a club. RSA's patent expired a few years ago I > believe (or will expire soon). That's hardly obsolete. Diffie-Hellman has expired, the RSA patent expires this year. Issued/Filed Dates: Sept. 20, 1983 / Dec. 14, 1977 Patents in the U.S. now lasts 20 years. Federal Register, Vol.60, No. 79 at 20195. [ ... ] SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (Public Law 103-465) was enacted on December 8, 1994. Public Law 103-465 amends 35 U.S.C. 154 to provide that the term of patent protection begins on the date of grant and ends 20 years from the filing date of the application. The amendment applies to all utility and plant patents issued on applications having an actual United States application filing date on or after June 8, 1995. Specifically, 35 U.S.C. 154(a)(2), as contained in Public Law 103-465, provides that the patent term will begin on the date on which the patent issues and will end twenty years from the date on which the application was filed in the United States. If the application contains a specific reference to an earlier application under 35 U.S.C. 120, 121 or 365(c), the patent term will end twenty years from the date on which the earliest application referred to was filed. As amended by Public Law 103-465, 35 U.S.C. 154 does not take into account for determination of the patent term any application on which priority is claimed under 35 U.S.C. 119, 365(a) or 365(b). [ ... ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 12:32:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27299 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:32:40 -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 MAA27295 for ; Mon, 24 Jul 2000 12:32:39 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4KP>; Mon, 24 Jul 2000 09:32:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D34@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Mon, 24 Jul 2000 09:31:59 -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 The biggest flaw, IMO, is that if they had patented CSS then their case really would be correct. But by going the trade secret route they opened themselves up to the possibility of reverse engineering. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Friday, July 21, 2000 6:28 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Here's a good site for info. > > > Paul Hsieh wrote: > > So as long as we are querying each other -- > > Is Clinton *also* partly to blame? > > What I mean is, had the DVD-CCA been allowed to use, say 128 bits, > > could the CSS algorithm have been fixed to allowed them to rely on > > their "revoke the bad keys" strategy? Or is the CSS algorithm more > > fundamentally flawed? Or is this not yet known? > > There are a number of different flaws in the DVD security > architecture. > Some can be fixed by stronger ciphers; some can't. Here are > three that > occur to me off the top of my head: > > - Software players are available. This is simply incompatible with > security. The fix is easy: don't build software players. > > - The CSS cipher has a 40-bit key, and thus is very susceptible to > exhaustive keysearch. You _can_ fix this. At the time DVD's were > released, the government was allowing full export of > 56-bit systems, > and I /believe/ the EAR allowed you to export > decryption-only systems > at any strength you like. Thus, there seems to have been no good > reason to use a 40-bit cipher. A 56-bit cipher is not immune from > exhaustive keysearch, either, but it raises the bar. A 128-bit > algorithm is, for all practical purposes, immune from keysearch. > > - The CSS cipher was flawed and allowed short-cut attacks. This is > Frank Stephenson's discovery. In fact, these flaws were really, > really bad. This could have been easily avoided if the industry > had simply avoided using a homebrew algorithm. However, > the cynics > among us can theorize that maybe, just maybe, the CSS cipher was > selected _not_ for security against copy pirates but for market > control, and in that case, the critera are completely different: > trade secret and patent matters a lot, and resistance to shortcut > attacks is essentially irrelevant. > > So, you'd have to work pretty hard to put together an argument that > Clinton is also partially to blame for this fiasco; maybe the argument > can be made, but I'm not sure how convincing it will be. > > _All_ of the flaws above can be fixed, and could have been > gotten right > in the first iteration. All of them should have been obvious to any > cryptographer worth his salt. But the industry opted, for > whatever reasons, > to go with a flawed system. > From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 12:36:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA27865 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:36:49 -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 MAA27861 for ; Mon, 24 Jul 2000 12:36:47 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4KQ>; Mon, 24 Jul 2000 09:36:16 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D35@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Mon, 24 Jul 2000 09:36:15 -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: Sunday, July 23, 2000 7:53 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Here's a good site for info. > > > On Thu, Jul 20, 2000 at 10:26:13AM -0700, David A. Wagner wrote: > > Yes, and I have a gripe about statements made, I think, at > the trial: that > > "every encryption algorithm will be broken, sooner or > later". That's a > > common misperception, but there are very good reasons to > believe that it's > > just not true. (Of course, there's a kernel of truth in > there -- namely, > > that designing secure encryption algorithms is very hard to > get right -- > > but that's very different, and in this case, the difference > is important!) > > I would like to add one point: > > There is always an O(1) "attack" against any CSS-like system > called the > "play" button. I'm not disagreeing with you, but I want to > vociferously add the point that a discussion of breaking an algorithm > should not be done without mentioning what real-world problem that > algorithm is supposed to solve. Privacy? Nope. Anyone who > wants to view > the movie need only push and the play button (and agree to code-is-law > restrictions on use). Authentication? Nope. Secret sharing? Nope. > Copy control? Cryptography doesn't solve that problem, so "nope". > However, a secret algorithm in conjunction with law is a big hammer to > coerce people into signing agreements that limit the functionality of > a player re: copying (whether the copying is legal or illegal). > The problem is that the law already provides such a hammer (i.e. to coerce people into signing agreements in order to use your invention). It's called a "patent". By foregoing patent protection for CSS they also gave up the right to require people to enter into contracts with them in order to use their invention (CSS), once it had been independantly reinvented. -- -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 Jul 24 12:38:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28145 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:38:36 -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 MAA28138 for ; Mon, 24 Jul 2000 12:38:35 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4KR>; Mon, 24 Jul 2000 09:38:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D36@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Here's a good site for info. Date: Mon, 24 Jul 2000 09:38:06 -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 The only access that CSS actually has control over is through the mechanism provided by the player keys. This provides control over which _players_ are permitted to access the content. This provides control over the manufacturers of players, but not over users. -- -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: Sunday, July 23, 2000 8:34 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Here's a good site for info. > > > On Fri, Jul 21, 2000 at 03:47:59PM -0700, > Michael.A.Rolenz@aero.org wrote: > > > > Sadly....I think that's it. > > > > Look at DCMA. I've got to reread it to see if I missed > something but it > > seems to have some undefined terms like access control - > what accesses are > > being controlled. > > Which "access" is controlled depends on the day of the week and what > the copyright owner feels like. Kaplan has on various > occassions called > 1201(a) (i) "prophylactic" to copyright infringement, and > others has said > (ii) roughly that "this is not an infringement suit". In the one > case (i), fair use is relevant and in the other (ii), access can't be > descrambling or any proxy for descrambling, it has to be something > like "commercially significant access", i.e. forking up some dough to > buy a disk or receive the transmission of a work. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 12:41:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA28220 for dvd-discuss-outgoing; Mon, 24 Jul 2000 12:41:25 -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 MAA28217 for ; Mon, 24 Jul 2000 12:41:24 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4KT>; Mon, 24 Jul 2000 09:40:58 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D37@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] illegal ideas Date: Mon, 24 Jul 2000 09:40:57 -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 Somebody should send this msg to Garbus. It sounds like a fine core for a final summation. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Friday, July 21, 2000 4:31 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] illegal ideas > > > > I was struck by the deposition of Barbara Simons, > ex-president of ACM, at > http://www.eff.org/IP/Video/MPAA_DVD_cases/20000708_ny_simons_dep.html > p 19ff > > 13 A. I think -- first of all, I think the whole > 14 approach of the legislation is wrong. Rather than > 15 penalizing technologies and technological devices, I > 16 think what should have been done was to go after > 17 behavior and, in fact, what I was hoping would pass was > 18 the Candle-Boucher Bill. > 19 I think it's a mistake to attempt to > criminalize > 20 technologies, and in particular it's a mistake > to do that > 21 when the people who are doing it don't understand > 22 implications of what they are attempting to criminalize. > 23 For example, I firmly believe that > everybody in > 24 Congress wants -- it's based on computer security. > 25 (Interruption in the proceedings.) > p91ff > 9 Q. And my question is, where does that > leave you in > 10 terms of the existence of laws against circumvention? > 11 A. I think that they're a bad idea. They can > 12 prevent people from reverse engineering software to > 13 eliminate bugs and viruses. They can prevent people > 14 from posting problems about software on the net so that > 15 others can correct those problems. They can prevent > 16 people doing computer security R&D from using a lot of > 17 their tools which frequently involve trying to break > 18 into systems. > 19 The fact is that we can't prove the > correctness > 20 of computer systems. All we can do -- I mean what > 21 people do is they try to break them. When they > succeed, > 22 then they've found a vulnerability which then gets > 23 patched. > 24 I'm not talking about people who have tried to > 25 break them for criminal reasons. I'm talking about > > 92 > > 1 people who break them because they want them to be > 2 secure. And this frequently involves circumvention. > 3 Many of these tools, which are standard tools, > 4 they need to be taught to students who will continue to > 5 do computer security work in the future. > 6 And again, I'm not a lawyer, but it > seems to me > 7 that one danger is you could read the DMCA as > preventing > 8 some of this kind of activity, which I think would be a > 9 disaster. > > Judge Kaplan has been groping, I think, in all this testimony > to try to figure out just what to do. He obviously can't > stop the 39,999 canoes coming down the Hudson. There is no > question of damages any more. He could somehow rule that > DeCSS code was illegal--this is all the MPAA asks now. > > But what's the point of declaring an idea is illegal? > I mean, what are you going to do, lock up a book, instead > of the one who is selling the book? > > The DMCA rests on the proposal by the MPAA that U.S. copyright > law was inadequate to protect their business interests. > Therefore they sought the DMCA to do two things: declare > a right going beyond copyright law, that allows them to deny > fair use to consumers, first sale rights, all the other rights > connected with copyright; and second to declare that any > idea or computer code that attempts to circumvent their > access control technology would be illegal. > > The problem is that the DMCA imposes criminal penalties on > persons, legal persons. There is no concept that I know of > for fixing criminal responsibility on an idea, on some piece > of computer code. > > But that is what we are left with in this case. Jon Johansen > is charged with "breaking into a computer"--but what computer, > his own, his father's? Emmanuel Goldstein is charged with > harboring an idea, publishing a piece of computer code that > is illegal? The plaintiffs stipulate that nobody has been > discovered using DeCSS to infringe on copyright; there is > no question of damages. Nobody has been shown to use DeCSS > to do anything illegal at all; on the other hand, Professor > Felton and Barbara Simons state that there are perfectly > valid reasons under the First Amendment, and under ordinary > and customary academic practice, to reverse engineer the > code and determine its security, and to inform the public > of the findings. The magazine 2600 is a publisher; The New > York Times is a publisher--do they have any First Amendment > rights here? How can an idea have First Amendment rights? > > Still, the studios paradoxically claim that unless Judge Kaplan > makes DeCSS illegal under DMCA, "piracy" will flourish and they > will go out of business. But they have shown no such thing, > only their presumption that unless Kaplan gives a stern warning, > the studio anti-piracy teams will have to use ordinary copyright > law and go before a judge to make their claims, instead of > being able to kick off the Internet whatever ideas they find > dangerous to their business interests. > > Martin Garbus ought to be able to make a fine speech about this. > Nobody, no Congress, no judge, ought to make ideas illegal. > Individual people ought to be responsible under the law. > Neither the studios nor Emmanuel Goldstein ought to be > exempt from that requirement. It is not technology under > trial here. It is a particular monopoly, the MPAA, that is > trying to use control of technology for their own purposes, and > those purposes are in conflict with the Constitution. > And this control of technology is futile. You can't pass > a law to control technology or ideas. > > So if Judge Kaplan rules that DeCSS is somehow "illegal," > what will that mean? Nothing. But if he decides that > making an idea illegal is preposterous, then he needs to > overturn the DMCA. > > From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:03:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29209 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:03:50 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA29206 for ; Mon, 24 Jul 2000 13:03:48 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id MAA27285 for ; Mon, 24 Jul 2000 12:02:48 -0500 Message-ID: <397C72EF.F060CAEA@mninter.net> Date: Mon, 24 Jul 2000 11:46:39 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. References: <5A8391CA2D9ED311AFAA080009D982B10B1D35@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > The problem is that the law already provides such a hammer > (i.e. to coerce people into signing agreements in order to > use your invention). It's called a "patent". By foregoing > patent protection for CSS they also gave up the right to > require people to enter into contracts with them in order > to use their invention (CSS), once it had been independantly > reinvented. And why isn't CSS patented, everyone? All together now: ANTI-TRUST. What issues did Kaplan's firm advise Time Warner on? ANTI-TRUST. What avenue has been summarily deemed irrelevant by Kaplan? ANTI-TRUST. Draw your own conclusions. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:22:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA29980 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:22:26 -0400 Received: from dial138.roadrunner.com (dial138.cybermesa.com [209.12.75.138] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA29976 for ; Mon, 24 Jul 2000 13:22:23 -0400 Received: (from paul@localhost) by dial138.roadrunner.com (8.8.7/8.8.7) id LAA01427 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 11:22:33 -0600 Date: Mon, 24 Jul 2000 11:22:32 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? Message-ID: <20000724112232.A1311@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 page 818: 14 Just by way of a parenthetical digression, I am well 15 aware that the issue of the extent to which there is 16 sufficient proof that there are in fact decrypted movies 17 available over the Internet has not been decided and we are 18 going to have further discussion about that. My question 19 presupposes, just on a hypothetical basis, if there is 20 adequate proof to find that there are such movies out there. Kaplan is under the delusion that distributing a scrambled or encrypted movie over the internet is copy control. This is wrong. Descrambling comes either before or after copying. By the requirement that a cause must preceed an effect, descrambling cannot be controlling copying. Scrambling controls use as in performance of the plaintext, not copying. This is where the "shotguns" come from. The problem is that DOD and DeCSS are radically different programs. DeCSS descrambles and copies. DOD only copies. DeCSS is on trial for descrambling, at least as far as this being a 1201(a) suit goes, but the judge keeps looking at the copying. Even though every DVD descrambler has to make a copy in the normal course of its operation. A major problem as I see it that Kaplan seems to believe that access == "getting the plaintext" is necessary for the statute to have meaning. This is also wrong. The P's lawsuit is baseless if one takes access == "commercial access", but that is a different matter from saying the statute would be toothless. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:23:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30134 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:23:47 -0400 Received: from mail1.uksolutions.co.uk (mail1.uksolutions.co.uk [194.205.220.15]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA30129 for ; Mon, 24 Jul 2000 13:23:45 -0400 Received: (qmail 25704 invoked by alias); 24 Jul 2000 17:21:34 -0000 Received: from vortex.ukshells.co.uk (qmailr@194.205.220.41) by mail1.uksolutions.co.uk with SMTP; 24 Jul 2000 17:21:34 -0000 Received: (qmail 27512 invoked by uid 7863); 24 Jul 2000 17:22:33 -0000 From: Chris Ebenezer MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Message-ID: <14716.31577.534066.481996@vortex.ukshells.co.uk> Date: Mon, 24 Jul 2000 18:22:33 +0100 (BST) To: dvd-discuss@eon.law.harvard.edu, Danny Silverman Subject: Re: [dvd-discuss] illegal ideas X-Mailer: VM 6.75 under Emacs 20.3.1 X-No-Archive: yes Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Danny Silverman writes: > > I think the whole thing is an attempt to create a trust in > > such a way that they can get around Betamax and the Home recording > > act. > > I agree. The MPAA honestly thinks what they are saying - that DeCSS > will ruin them. It is exactly what they thought in the Betamax case. > They don't give a rat's ass about 2600, it seems they are genuinely > scared! They ARE Well - from their point of view this sort of makes sense. I think you need to look at where most of these people are coming from. Most of the media studios are exactly that - they sell all forms of media. Now what the introduction of CDs taught them was that there was this HUGE market for repeat sales to people who already had a recording in another form. Naturally they wish to preserve this healthy (for them) state of affairs. Ignoring the issues of piracy for the moment. This is why you won't see the media companies coming up with *ANY* digital format which is easy to reproduce prefectly (even for the purposes of fair use), because once they sell one copy of that recording to a user - they can *NEVER* sell it to that user again. They have chanced on a model that allows them to sell a single *FORM* of that recording. Naturally they want to preserve this situation. Heaven forbid that people should actually transfer around the rights of fair use by being allowed to sell them on. Reading between the lines of Marsha King's testimony this is certainly the impression that comes across. -- chris From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:28:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30517 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:28:22 -0400 Received: from dial138.roadrunner.com (dial138.cybermesa.com [209.12.75.138] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30512 for ; Mon, 24 Jul 2000 13:28:17 -0400 Received: (from paul@localhost) by dial138.roadrunner.com (8.8.7/8.8.7) id LAA01441 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 11:28:36 -0600 Date: Mon, 24 Jul 2000 11:28:35 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724112835.B1311@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D36@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D36@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Jul 24, 2000 at 09:38:06AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 09:38:06AM -0700, Richard Hartman wrote: > The only access that CSS actually has control over > is through the mechanism provided by the player > keys. This provides control over which _players_ > are permitted to access the content. This provides > control over the manufacturers of players, but not > over users. [ ... ] > > -----Original Message----- > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > > Sent: Sunday, July 23, 2000 8:34 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] Here's a good site for info. > > > > > > On Fri, Jul 21, 2000 at 03:47:59PM -0700, > > Michael.A.Rolenz@aero.org wrote: > > > > > > Sadly....I think that's it. > > > > > > Look at DCMA. I've got to reread it to see if I missed > > something but it > > > seems to have some undefined terms like access control - > > what accesses are > > > being controlled. > > > > Which "access" is controlled depends on the day of the week and what > > the copyright owner feels like. Kaplan has on various > > occassions called > > 1201(a) (i) "prophylactic" to copyright infringement, and > > others has said > > (ii) roughly that "this is not an infringement suit". In the one > > case (i), fair use is relevant and in the other (ii), access can't be > > descrambling or any proxy for descrambling, it has to be something > > like "commercially significant access", i.e. forking up some dough to > > buy a disk or receive the transmission of a work. I agree that "access" could have several definitions. But for the statute to avoid vagueness problems, one is going to have to pick one definition and stick to it. This is not being done right now, not by the court, not by the P's. Defintions: 1. Access is getting the plaintext. Then there are lots of constitutional problems, it isn't clear why 1201(c) is in the statute, authority makes absolutely no sense, etc. 2. Access is commercial access. The P's have no case what so ever against DeCSS, but the statute mostly makes sense, and there are few, or perhaps no, constitutional problems. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:30:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA30797 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:30:33 -0400 Received: from dial138.roadrunner.com (dial138.cybermesa.com [209.12.75.138] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA30794 for ; Mon, 24 Jul 2000 13:30:30 -0400 Received: (from paul@localhost) by dial138.roadrunner.com (8.8.7/8.8.7) id LAA01451 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 11:30:48 -0600 Date: Mon, 24 Jul 2000 11:30:48 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724113047.C1311@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D35@mail2.onetouch.com> <397C72EF.F060CAEA@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <397C72EF.F060CAEA@mninter.net>; from moseng@mninter.net on Mon, Jul 24, 2000 at 11:46:39AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 11:46:39AM -0500, Chris Moseng wrote: > Richard Hartman wrote: > > The problem is that the law already provides such a hammer > > (i.e. to coerce people into signing agreements in order to > > use your invention). It's called a "patent". By foregoing > > patent protection for CSS they also gave up the right to > > require people to enter into contracts with them in order > > to use their invention (CSS), once it had been independantly > > reinvented. > > And why isn't CSS patented, everyone? All together now: ANTI-TRUST. > > What issues did Kaplan's firm advise Time Warner on? ANTI-TRUST. > > What avenue has been summarily deemed irrelevant by Kaplan? ANTI-TRUST. > > Draw your own conclusions. In addition to anti-trust, one could argue that patent was being used to protect ideas outside the scope of the patent grant, and which where not subjected to disclosure during the patent process. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:45:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31261 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:45:07 -0400 Received: from winky.themail.com (root@winky.themail.com [216.64.2.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31257 for ; Mon, 24 Jul 2000 13:45:04 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.158]) by winky.themail.com (8.9.3/8.9.3) with SMTP id NAA15313 for ; Mon, 24 Jul 2000 13:49:11 -0500 (EST) (envelope-from mw@themail.com) Date: Mon, 24 Jul 2000 13:49:11 -0500 (EST) Message-Id: <200007241849.NAA15313@winky.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Who is John Gilmore?! X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.210.168.146 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_52_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_52_Boundary___ Content-type: text/plain At Sound or Noise future of music, at the Berkman Center this past FEB, I had the opportunity to speak with John Gilmore during lunch. I knew I recognized him from somewhere... I mistook him for a musician. He is the most pleasant person I have EVER had the pleasure to meet. He is humble (very humble) and kind and peaceful. Meeting him actually influenced my life. I want to be more like John Gilmore. He is truly at one with himself. Meet and speak with him, you'll see for yourself... I wish I could be there!!!! MORE ON JOHN GILMORE: John Gilmore is a co-founder of the EFF AND is one of the original Cypherpunks, an informal group dedicated to public education and dissemination of cryptography, as well as a founder of Cygnus Support. Gilmore also co-founded the ``alt'' newsgroups on the Usenet, along with Brian Reid and Gordon Moffett, to provide a forum for discussions that the ``mainstream'' Usenet refused to handle, like sex, drugs, and gourmet cooking, etc. And btw, everyone here did a lot of great work. I really liked the outline, Bryan. I especially liked the section on MPAA history of copyright infringments....:) -marcia > >> > John Gilmore never smiled. If you don't know who > >> > John Gilmore is, you don't know the roots of the case, > >> > and why he will never joke about it until its won. > >> > >> OK, I 'fess -- who is John Gilmore? > >> > __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_52_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:45:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31272 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:45:38 -0400 Received: from winky.themail.com (root@winky.themail.com [216.64.2.217]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31269 for ; Mon, 24 Jul 2000 13:45:36 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.158]) by winky.themail.com (8.9.3/8.9.3) with SMTP id NAA15679 for ; Mon, 24 Jul 2000 13:49:50 -0500 (EST) (envelope-from mw@themail.com) Date: Mon, 24 Jul 2000 13:49:50 -0500 (EST) Message-Id: <200007241849.NAA15679@winky.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] day 1 and protest photos? X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.210.168.146 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_87_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_87_Boundary___ Content-type: text/plain I thought for sure, Declan would have had some with his article. Did I overlook? Anyone know where the photos are? According to the linux users president, and everyone, GARBUS was supreme. From: jim@valinux.com | Block address Date: Mon, 17 Jul 2000 23:40:57 -0400 (EDT) To: Marcia Wilbur CC: eberg@nylug.org Subject: Re: Thanks, I was feeling low because I couldn't make this protest Add Addresses I was really amazed at Marvin Garbus' cross examination. Article awaits writing... bye! - Jim (MAN, I hope he adds photos!) -m __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_87_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:51:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31512 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:51:05 -0400 Received: from homer.sanchez.com (homer.sanchez.com [206.7.38.31]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31508 for ; Mon, 24 Jul 2000 13:51:04 -0400 Received: from oz.sanchez.com (oz [140.140.1.251]) by homer.sanchez.com (8.8.7/8.8.7) with ESMTP id MAA01630 for ; Mon, 24 Jul 2000 12:52:55 -0400 Received: by OZ with Internet Mail Service (5.5.2650.21) id ; Mon, 24 Jul 2000 13:50:20 -0400 Message-ID: <383558CE36E2D311AC790004AC33FF67616C6D@OZ> From: Anjul Srivastava To: "'dvd-discuss@eon.law.harvard.edu'" Subject: [dvd-discuss] Hope Date: Mon, 24 Jul 2000 13:50:19 -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 Once in a while, I feel quite low and a bit worried about the way First Amendment rights are being increasingly attacked by industry and government. One of these days, it won't be surprising if something goes wrong at the Supreme court level and a laws like the DMCA effectively take away the free speech rights that the founding fathers bestowed upon Americans. I am sure quite a few of those on this list and elsewhere have similar concerns. Here's what gives me hope: http://www.cs.nyu.edu/~waldman/publius/ Please support and hope that this fledgling project reaches full maturity! Regards, Anjul. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:56:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31639 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:56:26 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31636 for ; Mon, 24 Jul 2000 13:56:25 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id MAA17626 for ; Mon, 24 Jul 2000 12:55:46 -0500 (CDT) Message-ID: <397C82DF.BE97AED7@uic.edu> Date: Mon, 24 Jul 2000 12:54:40 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Effective 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 Michael.A.Rolenz wrote: > Actually, the music broadcasts are not free. I > believe the stations all have to pay fees to a > consortium (RIAA or some such organization) that > distributes the money to the recording companies. > From what a friend of mine tells me (he's involved > in the Boston Area Folk scene), the artists don't > get much money back from this either. The way it works is ... The record company loans you an "advance" to make your album. You don't get any money until your advance is paid off ... from your royalties, not from your sales. Your advance has to cover everything, including promotional costs. In order to get your song on the air, the record company hires a "promoter", at your expense, to go around to radio stations, with promotional CDs, t-shirts, etc, all printed at your expense, and, in some cases, it is rumored, a pocket full of "promotional expense" money, to "convince" the radio stations to play your song. You, the artist, pay for all of this. When the radio station plays your song, a VERY small amount of money, a nickel or a quarter, or something, is paid by the radio station to your record company, which goes to pay down your "advance". When your advance reaches zero, THEN you start to get royalty checks. Being an RIAA artist is like being in the eye of a hurricane. Around you, money swirls in ferocious storms, yet curiously, the air is still and quiet in your immediate vicinity ... The main benefit of radio station royalties is that they shelter radio stations and studios from antitrust allegations. "See, we aren't in collusion because the radio stations pay royalties when they use our works." From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:56:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31649 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:56:40 -0400 Received: from dial198.roadrunner.com (sf-du198.cybermesa.com [209.12.75.198]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31644 for ; Mon, 24 Jul 2000 13:56:37 -0400 Received: (from paul@localhost) by dial198.roadrunner.com (8.8.7/8.8.7) id LAA01604 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 11:56:51 -0600 Date: Mon, 24 Jul 2000 11:56:50 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Copying and cryptography, was: Here's a good site for info. Message-ID: <20000724115650.D1311@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D35@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D35@mail2.onetouch.com>; from hartman@onetouch.com on Mon, Jul 24, 2000 at 09:36:15AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 09:36:15AM -0700, Richard Hartman wrote: [ ... ] > > -----Original Message----- > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > > Sent: Sunday, July 23, 2000 7:53 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] Here's a good site for info. > > > > > > On Thu, Jul 20, 2000 at 10:26:13AM -0700, David A. Wagner wrote: > > > Yes, and I have a gripe about statements made, I think, at > > > the trial: that > > > "every encryption algorithm will be broken, sooner or > > > later". That's a > > > common misperception, but there are very good reasons to > > > believe that it's > > > just not true. (Of course, there's a kernel of truth in > > > there -- namely, > > > that designing secure encryption algorithms is very hard to > > > get right -- > > > but that's very different, and in this case, the difference > > > is important!) > > > > I would like to add one point: > > > > There is always an O(1) "attack" against any CSS-like system > > called the > > "play" button. I'm not disagreeing with you, but I want to > > vociferously add the point that a discussion of breaking an algorithm > > should not be done without mentioning what real-world problem that > > algorithm is supposed to solve. Privacy? Nope. Anyone who > > wants to view > > the movie need only push and the play button (and agree to code-is-law > > restrictions on use). Authentication? Nope. Secret sharing? Nope. > > Copy control? Cryptography doesn't solve that problem, so "nope". > > However, a secret algorithm in conjunction with law is a big hammer to > > coerce people into signing agreements that limit the functionality of > > a player re: copying (whether the copying is legal or illegal). > > > > The problem is that the law already provides such a hammer > (i.e. to coerce people into signing agreements in order to > use your invention). It's called a "patent". By foregoing > patent protection for CSS they also gave up the right to > require people to enter into contracts with them in order > to use their invention (CSS), once it had been independantly > reinvented. In the example you give, the license terms necessary to get use of the patented process, rather than the process, control the particular modes of copying that are possible. Furthermore, neither the license nor the process can possibly control copying per se, the O(1) "attack" exists because the work is viewable, not because of any fact about the "crypto" system or its licensing. The place where we may differ is that I'm not at all certain that patents can be used to control access to ideas that are not within the scope of the original patent grant. Given recent trends, this may be a naive belief on my part ... Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:56:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31655 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:56:42 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA31648 for ; Mon, 24 Jul 2000 13:56:40 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id MAA17687 for ; Mon, 24 Jul 2000 12:56:01 -0500 (CDT) Message-ID: <397C82EF.900188A0@uic.edu> Date: Mon, 24 Jul 2000 12:54:55 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Authority to decode CSS does not come from Warner! 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 Eldred wrote: > Where did Shamos get the authority to decrypt "Sleepless > in Seattle"? Who gave it to him and under what authority? Ravi Nanavati replied: > I don't think its that worthwhile. I'm sure the plaintiffs > have (or can create) documents from the DVD CCA, MPAA, > Time Warner or anyone else in their trust that would be > necessary to give Shamos the authority to decrypt. ... Ok ... here's the contradiction. CSS doesn't just "protect" the copyrighted works of the MPAA studios. It "protects" works by everyone who has ever published a work on DVD and opted for CSS. This includes independent videomakers, companies making DVDs for internal distribution, etc, etc. The MPAA is acting like THEY have the sole interest in CSS and are the owners of CSS, and that CSS only protects THEIR works, and is therefore THEIR measure. So the question is, if the general public does not have the right to obtain and use DeCSS, because CSS protects certain MPAA works, then how it is possible for the MPAA to authorize Shamos to obtain and use DeCSS, as they did and he did, when CSS protects works owned by other, non-MPAA copyright owners? Obviously, all the copyright owners of DVD works in the world didn't come together and "authorize" Shamos to use DeCSS for his demonstration. so on what authority was his demonstration conducted? The conduct of the plaintiffs leads me to believe that they don't even believe their own arguments. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 13:59:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA31814 for dvd-discuss-outgoing; Mon, 24 Jul 2000 13:59:16 -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 NAA31811 for ; Mon, 24 Jul 2000 13:59:15 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13GmUp-0003Fh-00; Mon, 24 Jul 2000 19:58:31 +0200 Received: from localhost by sites.inka.de with local id 13GmUo-0007pN-00; Mon, 24 Jul 2000 19:58:30 +0200 Date: Mon, 24 Jul 2000 19:58:30 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] day 1 and protest photos? Message-ID: <20000724195829.A29501@inka.de> References: <200007241849.NAA15679@winky.themail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007241849.NAA15679@winky.themail.com>; from mw@themail.com on Mon, Jul 24, 2000 at 01:49:50PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 01:49:50PM -0500, mw@themail.com wrote: > > I thought for sure, Declan would have had some with his article. > Did I overlook? > > Anyone know where the photos are? I don't know if they're the ones you're after, but there is a site linked from my page that has quite a few (URL in the sig) and several more in the NYLUG writeup. These are photographs of the protest *outside* the courthouse. AFAIK cameras aren't permitted inside. Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:05:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA31972 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:05:27 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA31969 for ; Mon, 24 Jul 2000 14:05:20 -0400 Received: by aero.org id <17402-6>; Mon, 24 Jul 2000 11:03:51 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdYKBa15265; Mon Jul 24 10:28:29 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 10:16:58 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 10:16:58 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 10:28:35 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Another argument against shortening the time is that if it does become obsolete by the time the patent has expired, then something has made it obsolete. One ironic twist on the Sonny Bono Extension Law is that in many states one must exercise one's property rights at least once a year or one can loose REAL property but intellectual property can be kept well beyond a lifetime without doing anything. Paul Fenimore @eon.law.harvard.edu on 07/24/2000 09:48:01 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Mon, Jul 24, 2000 at 08:38:15AM -0700, Michael.A.Rolenz@aero.org wrote: > > I agree that the current copyright laws are practically "forever" and > should not be. There's no reason for corporations to have copyrights for > 100yrs or even the 3rd or 4th generation of descendants from the creator. > But I cannot see any reason why copyright should be less than 28yrs. Few > writers of fiction and music actually have best sellers but many earn a > comfortable living later in life from the residuals from a lifetime of > work. There are few things I can think of that are copyrighted that are > critical that they go into the public domain as fast as possible. Actually, > I can't think of anything that is critical. > > Patents are for 17 years. I don't think that's unreasonable either. What is > unreasonable is what can get patented these days. TRW patented satellite > orbits and used them as a club. RSA's patent expired a few years ago I > believe (or will expire soon). That's hardly obsolete. Diffie-Hellman has expired, the RSA patent expires this year. Issued/Filed Dates: Sept. 20, 1983 / Dec. 14, 1977 Patents in the U.S. now lasts 20 years. Federal Register, Vol.60, No. 79 at 20195. [ ... ] SUPPLEMENTARY INFORMATION: The Uruguay Round Agreements Act (Public Law 103-465) was enacted on December 8, 1994. Public Law 103-465 amends 35 U.S.C. 154 to provide that the term of patent protection begins on the date of grant and ends 20 years from the filing date of the application. The amendment applies to all utility and plant patents issued on applications having an actual United States application filing date on or after June 8, 1995. Specifically, 35 U.S.C. 154(a)(2), as contained in Public Law 103-465, provides that the patent term will begin on the date on which the patent issues and will end twenty years from the date on which the application was filed in the United States. If the application contains a specific reference to an earlier application under 35 U.S.C. 120, 121 or 365(c), the patent term will end twenty years from the date on which the earliest application referred to was filed. As amended by Public Law 103-465, 35 U.S.C. 154 does not take into account for determination of the patent term any application on which priority is claimed under 35 U.S.C. 119, 365(a) or 365(b). [ ... ] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:22:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01328 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:22:15 -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 OAA01325 for ; Mon, 24 Jul 2000 14:22:13 -0400 Message-ID: <20000724182101.7761.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 24 Jul 2000 11:21:01 PDT Date: Mon, 24 Jul 2000 11:21:01 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Here's a good site for info. 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 We ought to list the antitrust cases the studios have been involved in. I recall there were some old cases from the Supreme Court where the studios tried to use patents with projectors or something. These were booted for antitrust reasons, I think. Anybody know the case(s)? Obviously there's also US v. Paramount that shows antitrust is a core issue, but I'm talking about a patent case. --- Chris Moseng wrote: > And why isn't CSS patented, everyone? All together now: ANTI-TRUST. > > What issues did Kaplan's firm advise Time Warner on? ANTI-TRUST. > > What avenue has been summarily deemed irrelevant by Kaplan? > ANTI-TRUST. > > Draw your own conclusions. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:23:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA01396 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:23:20 -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 OAA01390 for ; Mon, 24 Jul 2000 14:23:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4K9>; Mon, 24 Jul 2000 11:22:53 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D39@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Mon, 24 Jul 2000 11:22:52 -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] > Sent: Saturday, July 22, 2000 12:54 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > "Robert S. Thau" wrote: > >Phil Harrison writes: > > > If the consumer is only authorized to play a DVD disk on cetain > > > players, shouldn't that be spelled out on the packaging > of the disk > > > itself? How can a consumer be expected to know whether or not his > > > player is authorised to play a specific disk, since > player keys can > > > be revoked? Shouldn't the consumer be made aware of the > > > authorization attached to each DVD disk at the point of sale? > > > >The consumer doesn't have to be aware of this, on the plaintiffs' > >view, because unauthorized players aren't supposed to *exist*. > >Remember their argument, once again: > > They can stick their heads in the sand all they want, but unauthorized > ones do exist. Also more will exist whenever a player key gets > revoked. If/when they revoke the key of a major mfgr ... or enough minor mfgr keys ... they will probably get a class action lawsuit on behalf of the owners of those players once they find that they can not play new DVDs. Revoking keys is supposedly a punishment to the mfgr, but it affects all the consumers that bought those DVD players in good faith. When this happens, we'll see how well their supposed "authority model" stands 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 Jul 24 14:30:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA02201 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:30:00 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA02198 for ; Mon, 24 Jul 2000 14:29:57 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QBHC>; Mon, 24 Jul 2000 14:34:06 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E85@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Mon, 24 Jul 2000 14:34:05 -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 Not any more. They have been extended to 25 years. -----Original Message----- From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] Sent: Monday, July 24, 2000 11:38 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Patents are for 17 years. I don't think that's unreasonable either. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:38:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03179 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:38:15 -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 OAA03175 for ; Mon, 24 Jul 2000 14:38:13 -0400 Message-ID: <20000724183701.21680.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Mon, 24 Jul 2000 11:37:01 PDT Date: Mon, 24 Jul 2000 11:37:01 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] MPAA v. 2600 - Day 1 Who is John Gilmore?! 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 --- mw@themail.com wrote: > And btw, everyone here did a lot of great work. I really liked the > outline, Bryan. I especially liked the section on MPAA history of > copyright infringments....:) Actually I got the idea from reading the Betamax case. It turns out that footnote 13 lists a history of abuses of copyright by overreaching copyright owners. If you include the Betamax case, then 3 of the 5 transgressions are movie studios!! "[ Footnote 13 ] [...] While the law has never recognized an author's right to absolute control of his work, the natural tendency of legal rights to express themselves in absolute terms to the exclusion of all else is particularly pronounced in the history of the constitutionally sanctioned monopolies of the copyright and the patent. See, e. g., United States v. Paramount Pictures, Inc., 334 U.S. 131, 156 - 158 (1948) (copyright owners claiming right to tie license of one film to license of another under copyright law); Fox Film Corp. v. Doyal, 286 U.S. 123 (1932) (copyright owner claiming copyright renders it immune from state taxation of copyright royalties); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 349 -351 (1908) (copyright owner claiming that a right to fix resale price of his works within the scope of his copyright); International Business Machines Corp. v. United States, 298 U.S. 131 (1936) (patentees claiming right to tie sale of unpatented article to lease of patented device)." SONY CORPORATION OF AMERICA v. UNIVERSAL CITY STUDIOS, 464 U.S. 417 (Jan. 17, 1984) Summary of the Betamax case: http://bioinformatics.ucsf.edu/bwtaylor/dvd/cases/summaries/Sony_v_Universal.html __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:44:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03323 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:44:49 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03319 for ; Mon, 24 Jul 2000 14:44:48 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QB2A>; Mon, 24 Jul 2000 14:49:07 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E86@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Mon, 24 Jul 2000 14:49:06 -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 Kaplan is absolutely correct. You own the physical object, but the copyright owner owns the work. Its just like -- say I notice you skinny dipping in your backyard pool. I take a picture of you doing that. As long as I am not trespassing, the picture is legal -- you have no expectation of privacy in that situation. However, I could not publish the resulting picture, because even though I own the picture, you own your image on the picture. I argue that: * reverse engineering of the CSS technical process was fair use of whatever software / hardware was reverse engineered. (this is not a trial issue) * copyright owners residual rights are limited across sale to certain activities specified in the copyright act. The number 106 comes to mind. * the only change that 1201 makes is to say that the copyright owner may sell access to the work separately from physical possession. It makes it illegal to circumvent any measure put in place by the copyright owner that permits this alternative sale/distribution model. * In the case of DVDs, access to the work is not sold separately from physical possession. > -----Original Message----- > From: Ron Gustavson [mailto:rongus@tiac.net] > Sent: Saturday, July 22, 2000 8:20 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > But Kaplan has suggested that the buyer only buys a piece of > plastic (let's call that polycarbonate laminated over foil.) From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:50:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03403 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:50:51 -0400 Received: from dial214.roadrunner.com (dial214.cybermesa.com [209.12.75.214] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03400 for ; Mon, 24 Jul 2000 14:50:45 -0400 Received: (from paul@localhost) by dial214.roadrunner.com (8.8.7/8.8.7) id MAA02216 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 12:51:04 -0600 Date: Mon, 24 Jul 2000 12:51:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] dvd-discuss] MPAA v. 2600 - Day 4 Message-ID: <20000724125103.A1784@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from ssyreeni@cc.helsinki.fi on Fri, Jul 21, 2000 at 03:29:41PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 21, 2000 at 03:29:41PM +0300, Sampo A Syreeni wrote: > On Thu, 20 Jul 2000 Michael.A.Rolenz@aero.org wrote: > > >What he may also be asking himself is "What will the MPAA get from 2600 if > >they get their verdict?" - They haven't been able to prove ANY damages that > >are compensable. (That's one thing Garbus is driving at with his "Can you > >prove ANYBODY ANYWHERE AT ANYTIME DID IT?") So they aren't going to get > >much money. > > In a similar vein, it's a funky thought overall that damages could be > awarded based on 1201 - after all, all the possible damage comes from > copyright infringement. Anything left over would be highly speculative. Only so long as one takes Kaplan's "prophylactic" definition of access. If 1201(a) is talking about commercial acquisition of a work as "access", then the damage would be the avoidance of paying the copyright owner at first sale. Sure, one could call the copy at the other end a copyright infringement, but a careful analysis is needed here. 1201(a) seems to concieve of a work where 'streaming' involves no copies, which is factually wrong, and reaches what may be a different conclusion about "transient" copies than 17 U.S.C. 117(c) (i.e. that a transient copy is a copy). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 14:52:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03488 for dvd-discuss-outgoing; Mon, 24 Jul 2000 14:52:38 -0400 Received: from dial214.roadrunner.com (dial214.cybermesa.com [209.12.75.214] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03485 for ; Mon, 24 Jul 2000 14:52:34 -0400 Received: (from paul@localhost) by dial214.roadrunner.com (8.8.7/8.8.7) id MAA02226 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 12:52:48 -0600 Date: Mon, 24 Jul 2000 12:52:48 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724125247.B1784@localhost> References: <611C0CE12596D311B466009027D5E7591E4E85@c100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E85@c100.clearway.com>; from Ray@clearway.com on Mon, Jul 24, 2000 at 02:34:05PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Did it change again, up from 20 years? On Mon, Jul 24, 2000 at 02:34:05PM -0400, Leland Ray wrote: > > Not any more. They have been extended to 25 years. > > -----Original Message----- > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > Sent: Monday, July 24, 2000 11:38 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > Patents are for 17 years. I don't think that's unreasonable either. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:27:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04249 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:27:12 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04246 for ; Mon, 24 Jul 2000 15:27:08 -0400 Received: by aero.org id <17118-6>; Mon, 24 Jul 2000 12:26:18 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdIFAa09469; Mon Jul 24 12:26:08 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 12:25:21 -0700 Subject: Re: [dvd-discuss] illegal ideas To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 12:25:19 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 12:26:12 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm afraid that's exactly what CDs have taught them.... Consider the media : '78rpm records were around for 20-30yrs. LPs 30-40 yrs. CDs have been around for 15yrs and now DVD audio is the next big push. Why? it's repeat sales of course. Same Recordings New Media. Higher Fidelity [BTW- The speakers have always been the weakest part of ANY sound system]. Who cares? Chris Ebenezer @eon.law.harvard.edu on 07/24/2000 10:34:14 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu, Danny Silverman cc: Subject: Re: [dvd-discuss] illegal ideas Danny Silverman writes: > > I think the whole thing is an attempt to create a trust in > > such a way that they can get around Betamax and the Home recording > > act. > > I agree. The MPAA honestly thinks what they are saying - that DeCSS > will ruin them. It is exactly what they thought in the Betamax case. > They don't give a rat's ass about 2600, it seems they are genuinely > scared! They ARE Well - from their point of view this sort of makes sense. I think you need to look at where most of these people are coming from. Most of the media studios are exactly that - they sell all forms of media. Now what the introduction of CDs taught them was that there was this HUGE market for repeat sales to people who already had a recording in another form. Naturally they wish to preserve this healthy (for them) state of affairs. Ignoring the issues of piracy for the moment. This is why you won't see the media companies coming up with *ANY* digital format which is easy to reproduce prefectly (even for the purposes of fair use), because once they sell one copy of that recording to a user - they can *NEVER* sell it to that user again. They have chanced on a model that allows them to sell a single *FORM* of that recording. Naturally they want to preserve this situation. Heaven forbid that people should actually transfer around the rights of fair use by being allowed to sell them on. Reading between the lines of Marsha King's testimony this is certainly the impression that comes across. -- chris From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:30:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04415 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:30:52 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04404 for ; Mon, 24 Jul 2000 15:30:49 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id UAA23018 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 20:10:58 +0100 Date: Mon, 24 Jul 2000 20:10:58 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724201058.A22752@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000723092818.A18036@ramtop.demon.co.uk> <200007240121.VAA18712@emperor.hwrd1.md.home.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: <200007240121.VAA18712@emperor.hwrd1.md.home.com>; from Jim Bauer on Sun, Jul 23, 2000 at 09:21:37PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 23, 2000 at 09:21:37PM -0400, Jim Bauer wrote: > Phil Harrison wrote: > > > >I am wondering how the consumer is supposed to know whether or not a given disk > >has the keys for their player when they buy that disk. Can the plaintiffs really > >claim that they are only authorising access to the copyrighted work using an > >authorised player if they are not informing the consumer which players are still > >authorised to play that particular disk? > > > >Because if this claim doesn't hold up, could it be argued that the consumer is > >not restricted to using authorised players to access the copyrighted work? In > >which case, wouldn't this invalidate the circumvention argument, since the user > >would be authorised to access the DVD? > > Assume a consumer owns a so-called approved DVD player. Then later the > keys for that player are revoked. Sometime later they buy a new DVD > and take it home to play it on their player. However it dosn't work. > I see no way for the consumer to have known it would not work or even > concieve of the possibility that is wouldn't work. > > In this case would the MPAA et. al. be liable for a fraudulent sale > of a "worthless" CD? Or what about the player manufactures who sold the > DVD player whos market value just went down the drain? Do I smell a > future class action law suit? The way I understand it, when you buy a DVD player, there is no guarantee that it will play all DVD's released in the future. So the authority to access the copyrighted work doesn't seem to be granted with the purchase of the player. Surely then, it is granted with the purchase of individual DVD disks. So does it really matter whether the consumer owns a DVD player or not? Can the copyright holder claim that the authorisation to access the work is only granted using certain players if that stipulation is not made clear to the consumer when the disk is sold? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:30:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04400 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:30:49 -0400 Received: from ramtop.demon.co.uk (root@ramtop.demon.co.uk [194.222.228.63]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04397 for ; Mon, 24 Jul 2000 15:30:45 -0400 Received: (from phil@localhost) by ramtop.demon.co.uk (8.9.3/8.9.3) id UAA23035 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 20:21:24 +0100 Date: Mon, 24 Jul 2000 20:21:24 +0100 From: Phil Harrison To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000724202124.B22752@ramtop.demon.co.uk> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 0.95.6i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Mon, Jul 24, 2000 at 08:09:17AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 08:09:17AM -0700, Michael.A.Rolenz@aero.org wrote: > > I can almost imagine a huge database at every DVD stand where you check > your player against the title. Of course if it's out of date or you make a > mistake - Caveat Emptor. > At the moment though it seems to be a case of Caveat Emptor even though they don't provide the information. I guess it all boils down to the interpretation of "authority" in the statute. Is the copyright holder able to attach provisions to the authority to access the work that state how the work may be accessed? If so, are they required to make this clear at the point of sale? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:34:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04642 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:34:49 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04639 for ; Mon, 24 Jul 2000 15:34:46 -0400 Received: by aero.org id <17103-6>; Mon, 24 Jul 2000 12:33:48 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdOAAa11663; Mon Jul 24 12:33:27 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 12:33:18 -0700 Subject: RE: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 12:33:15 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 12:33:34 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Consider too the "shrink wrap" issue. Many places will refund for CDs or DVDs ONLY if the shrinkwrap is intact. Otherwise they will only replace... If I buy a DVD that has the key revoked for my player, I won't know that the key has been revoked until I try to play the DVD. I could go back to the store and get a replacement copy ad infinitum and it won't work. It fails the UCC's warrenty of merchantability. Richard Hartman @eon.law.harvard.edu on 07/24/2000 11:42:38 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] fact on DVD player to bring in > -----Original Message----- > From: Jim Bauer [mailto:jfbauer@home.com] > Sent: Saturday, July 22, 2000 12:54 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > "Robert S. Thau" wrote: > >Phil Harrison writes: > > > If the consumer is only authorized to play a DVD disk on cetain > > > players, shouldn't that be spelled out on the packaging > of the disk > > > itself? How can a consumer be expected to know whether or not his > > > player is authorised to play a specific disk, since > player keys can > > > be revoked? Shouldn't the consumer be made aware of the > > > authorization attached to each DVD disk at the point of sale? > > > >The consumer doesn't have to be aware of this, on the plaintiffs' > >view, because unauthorized players aren't supposed to *exist*. > >Remember their argument, once again: > > They can stick their heads in the sand all they want, but unauthorized > ones do exist. Also more will exist whenever a player key gets > revoked. If/when they revoke the key of a major mfgr ... or enough minor mfgr keys ... they will probably get a class action lawsuit on behalf of the owners of those players once they find that they can not play new DVDs. Revoking keys is supposedly a punishment to the mfgr, but it affects all the consumers that bought those DVD players in good faith. When this happens, we'll see how well their supposed "authority model" stands 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 Jul 24 15:35:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04655 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:35:30 -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 PAA04651 for ; Mon, 24 Jul 2000 15:35:24 -0400 Message-ID: <20000724193413.11689.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 24 Jul 2000 12:34:13 PDT Date: Mon, 24 Jul 2000 12:34:13 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] X-Men on DivX, though not on DVD 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 poster on Slashdot says he has seen X-Men on DivX and that the quality is actually pretty good. It is not available on DVD (it's still in the theaters). If we could get this into evidence it should convince even Kaplan that another shotgun did the damage. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:50:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04936 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:50:18 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA04933 for ; Mon, 24 Jul 2000 15:50:16 -0400 Received: by aero.org id <17089-6>; Mon, 24 Jul 2000 12:49:10 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdSEAa11663; Mon Jul 24 12:48:59 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 12:48:25 -0700 Subject: RE: [dvd-discuss] authorization To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 12:48:25 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 12:49:09 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Actually, that's not true in the USA. In general, you can take a picture of ANYTHING you can see in public and it's yours to do with as you choose. The supreme court has repeatedly ruled that. Remember the Jackie Kennedy Onassis pictures. Also, there are some pictures that cannot be copyrighted-ones taken in National Parks I believe (which is why Ansel Adams estate keeps the negatives). It is still not clear again what access means. I own the media but control over when and where I can access it is something well beyond traditional copyright and the common law.... Now they tried that with DiVX and that failed in the marketplace (I can see why. After I use up my purchased number of views, I am stuck with disposal or storage of a useless piece of junk....easier to just rent a tape and return it). Leland Ray @eon.law.harvard.edu on 07/24/2000 11:47:02 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] authorization Kaplan is absolutely correct. You own the physical object, but the copyright owner owns the work. Its just like -- say I notice you skinny dipping in your backyard pool. I take a picture of you doing that. As long as I am not trespassing, the picture is legal -- you have no expectation of privacy in that situation. However, I could not publish the resulting picture, because even though I own the picture, you own your image on the picture. I argue that: * reverse engineering of the CSS technical process was fair use of whatever software / hardware was reverse engineered. (this is not a trial issue) * copyright owners residual rights are limited across sale to certain activities specified in the copyright act. The number 106 comes to mind. * the only change that 1201 makes is to say that the copyright owner may sell access to the work separately from physical possession. It makes it illegal to circumvent any measure put in place by the copyright owner that permits this alternative sale/distribution model. * In the case of DVDs, access to the work is not sold separately from physical possession. > -----Original Message----- > From: Ron Gustavson [mailto:rongus@tiac.net] > Sent: Saturday, July 22, 2000 8:20 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > But Kaplan has suggested that the buyer only buys a piece of > plastic (let's call that polycarbonate laminated over foil.) From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 15:52:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05056 for dvd-discuss-outgoing; Mon, 24 Jul 2000 15:52:33 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA05053 for ; Mon, 24 Jul 2000 15:52:32 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QB3B>; Mon, 24 Jul 2000 15:56:48 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E88@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Mon, 24 Jul 2000 15:56:47 -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 Even better, I want to be able to return my player if its key gets revoked. Oh, its has been two years since I purchased it? -----Original Message----- From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] Sent: Monday, July 24, 2000 3:34 PM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] fact on DVD player to bring in Consider too the "shrink wrap" issue. Many places will refund for CDs or DVDs ONLY if the shrinkwrap is intact. Otherwise they will only replace... If I buy a DVD that has the key revoked for my player, I won't know that the key has been revoked until I try to play the DVD. I could go back to the store and get a replacement copy ad infinitum and it won't work. It fails the UCC's warrenty of merchantability. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 16:08:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA05939 for dvd-discuss-outgoing; Mon, 24 Jul 2000 16:08:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA05933 for ; Mon, 24 Jul 2000 16:08:11 -0400 Received: by aero.org id <17147-2>; Mon, 24 Jul 2000 13:07:11 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBLAa11663; Mon Jul 24 13:04:07 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 13:03:38 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 01:03:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 13:04:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From my reading of some of the comments on the DMCA by its writers the answer seems to be NO. They didn't intend for the copyright owner to have the ability to determine access - only the abilility to prevent copying outside 'fair use". The more I look at this case, the more it looks like the studios the MPAA created and have implemented a coordinated Legislative, economic, and technological plan which together will allow them to circumvent the home recording act and the Betamax decisions. They can point to any one of the pieces by itself and state that "no it doesn't do that" but together it does. It rather reminds me of one of Lincoln's speechs where the talked about James [Buchanan], Robert [Taney], and Stephan [Douglas]. He said that whether or not it their actions were coordinated didn't really matter since the result is the same. It's the same here. Can you make a copy of a DVD onto a VHS tape? - no the players have to have macrovision. Can you put it on your computer or burn it as a big MPEG file on multiple CDs - not if they have their way in court thanks to the DMCA they got pushed through congress. Phil Harrison @eon.law.harvard.edu on 07/24/2000 12:46:43 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in On Mon, Jul 24, 2000 at 08:09:17AM -0700, Michael.A.Rolenz@aero.org wrote: > > I can almost imagine a huge database at every DVD stand where you check > your player against the title. Of course if it's out of date or you make a > mistake - Caveat Emptor. > At the moment though it seems to be a case of Caveat Emptor even though they don't provide the information. I guess it all boils down to the interpretation of "authority" in the statute. Is the copyright holder able to attach provisions to the authority to access the work that state how the work may be accessed? If so, are they required to make this clear at the point of sale? -- Phil Harrison From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 16:14:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06151 for dvd-discuss-outgoing; Mon, 24 Jul 2000 16:14:41 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06148 for ; Mon, 24 Jul 2000 16:14:40 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id QAA08323; Mon, 24 Jul 2000 16:14:44 -0400 Message-ID: <397CA3B4.C08E7EAA@mit.edu> Date: Mon, 24 Jul 2000 16:14:44 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! References: <397C82EF.900188A0@uic.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 John Schulien wrote: > > Eric Eldred wrote: > > Where did Shamos get the authority to decrypt "Sleepless > > in Seattle"? Who gave it to him and under what authority? > > Ravi Nanavati replied: > > I don't think its that worthwhile. I'm sure the plaintiffs > > have (or can create) documents from the DVD CCA, MPAA, > > Time Warner or anyone else in their trust that would be > > necessary to give Shamos the authority to decrypt. ... > > Ok ... here's the contradiction. CSS doesn't just "protect" the > copyrighted works of the MPAA studios. It "protects" > works by everyone who has ever published a work on > DVD and opted for CSS. This includes independent > videomakers, companies making DVDs for internal > distribution, etc, etc. > > The MPAA is acting like THEY have the sole interest > in CSS and are the owners of CSS, and that CSS only > protects THEIR works, and is therefore THEIR measure. > > So the question is, if the general public does not have > the right to obtain and use DeCSS, because CSS > protects certain MPAA works, then how it is possible > for the MPAA to authorize Shamos to obtain and use > DeCSS, as they did and he did, when CSS protects > works owned by other, non-MPAA copyright > owners? > > Obviously, all the copyright owners of DVD works > in the world didn't come together and "authorize" > Shamos to use DeCSS for his demonstration. so on > what authority was his demonstration conducted? Of course they did. You have to sign a license agreement (with either the DVD CCA or a DVD producer) to get your content on DVD in the first place. No one knows what the terms of such agreements are, but one of the terms is probably (or can retroactively made to be without us knowing) an exclusive grant of authority to the DVD CCA to grant others the authority to descramble the CSS-encrypted DVD version of the work. The more you look at this the more it looks like a cartel --- everyone on every side player manufacturers, content producers (no matter how small), disk manufacturers and pressers, etc. are all entangled in license agreements. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 16:14:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA06144 for dvd-discuss-outgoing; Mon, 24 Jul 2000 16:14:34 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA06141 for ; Mon, 24 Jul 2000 16:14:30 -0400 Received: by aero.org id <17096-2>; Mon, 24 Jul 2000 13:13:33 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdINAa11663; Mon Jul 24 13:12:33 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 13:11:09 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 01:11:08 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 13:12:41 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Phil Harrison writes "when you buy a DVD player, there is no guarantee that it will play all DVD's released in the future." If that's true, then there is no DVD standard since guaranteeing that things work in the future is one of the purposes of having a standard. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 16:43:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA08375 for dvd-discuss-outgoing; Mon, 24 Jul 2000 16:43:03 -0400 Received: from dial129.roadrunner.com (sf-du129.cybermesa.com [209.12.75.129]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA08370 for ; Mon, 24 Jul 2000 16:43:00 -0400 Received: (from paul@localhost) by dial129.roadrunner.com (8.8.7/8.8.7) id OAA02555 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 14:43:20 -0600 Date: Mon, 24 Jul 2000 14:43:19 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] In evidence yet? Copying and CSS. Message-ID: <20000724144318.A2289@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm still digging out from my 11+ days away. I apologize if this is already in the record, but it seems to me like a good idea to make sure that "descrambling can come either before or after copying" is in the evidentiary record. Kaplan's belief that 1201(a) is "prophylactic" to infringment, and the P's case, rest on the false assumption that CSS is copy control. Something which can come before or after an event fails the most basic test of causality --- a cause must preceed an effect. Descrambling can come after copying, so by causality, it can't prevent it. If "causality" isn't in the record, then a number of avenues will be weakened or closed in the appeal process. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 16:48:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09355 for dvd-discuss-outgoing; Mon, 24 Jul 2000 16:48:15 -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 QAA09352 for ; Mon, 24 Jul 2000 16:48:14 -0400 Message-ID: <20000724204700.20079.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Mon, 24 Jul 2000 13:47:00 PDT Date: Mon, 24 Jul 2000 13:47:00 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD 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 --- Bryan Taylor wrote: > A poster on Slashdot says he has seen X-Men on DivX and that the > quality is actually pretty good. It is not available on DVD (it's > still in the theaters). Here's a really stupid question: what file extention does a DivX file use? How can you identify that a given file is a DivX file? I've never used DivX, so fogive my ignorance. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:02:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11772 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:02:45 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11769 for ; Mon, 24 Jul 2000 17:02:44 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA18238 for ; Mon, 24 Jul 2000 16:02:05 -0500 (CDT) Message-ID: <397CAE8C.B813D999@uic.edu> Date: Mon, 24 Jul 2000 16:01:00 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Difference between DeCSS and other DVD decoding programs Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu One important point that the defense has been dancing around, but I don't think have explicitly spelled out in the trial testimony. DeCSS, DOD, DVD rip, etc all provide the same capability -- the ability to obtain an uncompressed MPEG from a DVD disc. The main difference between DeCSS and the other is: Programs like DOD, DVD rip, etc, are not useful for the purpose of creating a license-free DVD player, because they are simply modifications, or "hacks" to existing DVD player software. The only DVD decyphering technology that is useful in creating a license-free DVD player is DeCSS. No surprise that this is the one and only technology that the MPAA cares enough to file lawsuits over. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:13:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12383 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:13:48 -0400 Received: from www.neophile.net ([195.224.237.7]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12380 for ; Mon, 24 Jul 2000 17:13:41 -0400 Received: from celly.neophile.net (gibbed.dircon.co.uk [194.112.43.178]) by www.neophile.net (8.9.3/8.9.3) with ESMTP id XAA31310 for ; Mon, 24 Jul 2000 23:01:43 +0100 Message-Id: <4.3.2.7.2.20000724220701.031c5e80@194.112.32.33> X-Sender: hammer@195.224.237.7 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 24 Jul 2000 22:12:44 +0100 To: dvd-discuss@eon.law.harvard.edu From: hammer Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD In-Reply-To: <20000724204700.20079.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id RAA12381 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu DivX uses a .AVI extension The copy of Xmen floating around is a camcorder recording - I have just got hold of it - I do not intend to reveal my source, before anyone asks - If it will help the case I can pass it along. You will need a decent connection though. The earliest I can do this is from work 2100 GMT on Tues. And no, I am not a pirate, just someone who hangs around in the right/wrong places :) At 13:47 24/07/2000 -0700, you wrote: >--- Bryan Taylor wrote: > > A poster on Slashdot says he has seen X-Men on DivX and that the > > quality is actually pretty good. It is not available on DVD (it's > > still in the theaters). > >Here's a really stupid question: what file extention does a DivX file >use? How can you identify that a given file is a DivX file? > >I've never used DivX, so fogive my ignorance. > >__________________________________________________ >Do You Yahoo!? >Get Yahoo! Mail ­ Free email you can access from anywhere! >http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:22:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13053 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:22:53 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13050 for ; Mon, 24 Jul 2000 17:22:52 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id QAA21355 for ; Mon, 24 Jul 2000 16:22:14 -0500 (CDT) Message-ID: <397CB345.3D5F55C7@uic.edu> Date: Mon, 24 Jul 2000 16:21:09 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Authority to decode CSS does not come from Warner! 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 Ravi Nanavati wrote: > No one knows what the terms of [the CCA license is] > but one of the terms is probably (or can retroactively > made to be without us knowing) an exclusive grant > of authority to the DVD CCA to grant others the > authority to descramble the CSS-encrypted DVD > version of the work. Ok the original testimony was: > 12 Q. Can Warner decide on its own to allow a company to play > 13 its DVDs without that company having a license from the > 14 DVD-CCA? > 15 A. No, not if we have encrypted the movie. King testified that Warner does NOT have the authority to grant authority to run CSS. Therefore, either: 1) Shamos obtained a special license from the DVD CCA to conduct the demonstration. 2) Warner has violated the CCA contract by contracting Shamos to engage in an actual, real life commercial use of DeCSS. 3) Shamos acted illegally. 4) King lied. or 5) Shamos acted legally, in which case the defendants also acted legally. I mean, the point I'm making, is that, if this were a trial about pickpocketing, it would not be acceptable for the plaintiff to hire an "expert" to go to Grand Central Station and actually pickpocket a couple of people, then show up at trial and display his collection of watches and wallets. How is it that Shamos is allowed to commit the same "crime" as the defendants, and enter the fruits of his "crime" into evidence? Or am I missing something? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:32:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13290 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:32:23 -0400 Received: from dial144.roadrunner.com (dial144.cybermesa.com [209.12.75.144] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13287 for ; Mon, 24 Jul 2000 17:32:20 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id PAA02833 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:32:35 -0600 Date: Mon, 24 Jul 2000 15:32:34 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Goldstein, July 21, p.820: CSS and copying Message-ID: <20000724153234.A2704@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 Logical fallacy alert! Plaintiffs are at it again. Page 820, Friday July 22nd, Goldstein's testimony on DeCSS and copying: 10 Q. We left off yesterday discussing a statement that you had 11 made and I am going to give it to you again. Did you not at 12 one point in time, after October of '99, state that DeCSS was 13 a free DVD decoder that allows people to copy DVDs? DeCSS does not "allow" the copying of DVDs. DVDs can be copied with or without descrambling. Acts of copying can be independent of acts of descrambling. The fact that all acts of descrambling a read-only DVD disk are dependent on acts of copying does nothing to contradict this. A -> B does not require that B -> A. The P's are depending on a logical fallacy. 14 A. That was a statement that was made on our web site which I 15 did not write but I take responsibility for. It was at some 16 point after it was published on our web site I believe in 17 November that we realized that it was a lot more complicated 18 than just that and we -- future writings on the web site 19 reflected this. [ ... ] Page 821: [ ... ] 21 Q. Let me ask you, Mr. Goldstein, is it not true that DeCSS 22 is a free DVD decoder that allows people to copy DVDs? No. Mere association with an act of copying does nothing to establish that the association was causative or enabling. 23 A. I believe it allows the data to be copied to a hard drive 24 at some point during its operation as do many other utilities 25 but I believe that it can do that if you write it in a Page 822: 1 particular way. 2 Q. Then the prior statement you made was correct, I guess? 3 A. Not entirely because it did not exist for the purpose of 4 copying DVDs. One would not run that program to copy DVDs. 5 Q. But you said that it was a free DVD decoder that allows 6 people to copy DVDs and if I understand your testimony this 7 morning, you are saying the same thing? 8 A. It allows you to do that but that's not the purpose of it. 9 Again, I am looking at this from a journalistic perspective. 10 Q. I am not asking you the purpose, I am asking you what it 11 does. It descrambles. Descrambling is not necessary to an act of copying. Copying can occur either in the Hong Kong flavor or over the Internet without descrambling (current practicality aside). The P's attny is trying to use the correct observation that copying is necessary to descrambling (A implies B), and falsely conclude that "B is true" implies "A is true" ==> "DeCSS allows copying". False. DeCSS allows use. This crap the P's are pushing should be blown out of the air. Logical fallacies are bad, bad, bad. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:33:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13488 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:33:20 -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 RAA13471 for ; Mon, 24 Jul 2000 17:33:18 -0400 Message-ID: <20000724213209.1126.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Mon, 24 Jul 2000 14:32:09 PDT Date: Mon, 24 Jul 2000 14:32:09 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- Paul Fenimore wrote: > I'm still digging out from my 11+ days away. I apologize if this is > already in the record, but it seems to me like a good idea to > make sure that "descrambling can come either before or after > copying" is in the evidentiary record. I think one of the Princeton Profs testified to it. It's really a trivial fact. Hopefully this diagram makes it clear: R*(D83dE@Cw%eR ---> "Hello World" | | | | V V R*(D83dE@Cw%eR ---> "Hello World" Horizontal: decryption Vertical : copying (use cut and paste) Mathematically, copying produces the identity function among works. The identity function commutes with anything, so the diagram is commutative regardless of the actual decryption function. That is, under function composition for any decryption: copying o decryption = decryption o copying = decryption In fact, for a given player, disc and title key, you can form an abelian group {decryption^n : n an integer} of string functions under composition that is isomorphic to the integers. If you don't understand what I just said, forget it, it's not important. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:35:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13656 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:35:01 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13652 for ; Mon, 24 Jul 2000 17:34:57 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id OAA23104 for ; Mon, 24 Jul 2000 14:34:15 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma022546; Mon, 24 Jul 00 14:32:55 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id PAA24412; Mon, 24 Jul 2000 15:32:53 -0600 From: "John Zulauf" To: Subject: [dvd-discuss] Questions about the P's burden Date: Mon, 24 Jul 2000 15:36:22 -0600 Message-ID: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 After following the brief and strange case by the plaintiffs it struck me that I didn't know what they were trying to claim about DeCSS and what the actual basis of the lawsuit is. What is the burden of proof on the plaintiff's? They seem to be treating 2600 like Franz K and claiming he's guilty by accusation, but never being clear on what the violation of law is, or how he violated it. They make a big deal about 2600 not being involved in cryptography or reverse engineering, but have they really met the burden of proof that he violated 1201 and would need this defense in the first place? "You have no alibi for the time we accuse you of dancing the hokey-pokey, therefore you are guilty!" But wouldn't one have to show that dancing the hokey-pokey is in fact illegal? 2600 posted DeCSS, that's established. DeCSS can decrypt CSS encoded DVD's. That's established. DeCSS contains information that was a trade secrect. That's established. DVD cleartext audio/video (once obtained by any of several means) can be compressed into lower quality audio and video. That's established. There are copyright violating pirates in this world. That's established. Files can be copied over the internet. Duh. That's established. The claim is against circumvention. That's asserted, essentially with the claim, "it's circumvention because we say so." The rest of the established facts don't address the core claim at all. We have a big pile of manure, but where's the pony? I understand the claim that DeCSS is a 1201 "circumvention" device but I don't understand how they have met their burden of proof. Here are the things I think they would need to show and didn't address in the slightest. I assert (with detail below) that: * They haven't met the burden of showing that DeCSS is circumvention * They haven't met the burden of showing that DeCSS allows access without the authority of the copy holder. * They haven't met the burden of showing that CSS is effective under 1201. Why doesn't the court see this and simply summarily judge for the D's? They haven't shown any of the necessary elements for a 1201a finding. And they have removed damages claims from their suit. What can be left at issue? Harm, but against what law can they offset the 1st amendment rights? Let's look at the law one piece at a time: a1A "No person shall circumvent" (1) The P's have neither defined circumvention, nor shown how DeCSS circumvents. DeCSS implements (unarguably) the decryption algorithm of CSS. What is the difference between implementation and circumvention? How does it provide access in any way differently from CSS? How is DeCSS materially different from CSS? How can the decryption in DeCSS be differentiated from CSS in a technical or legal sense (aside for the DVDCCA license to which neither 2600 nor MoRE is a party)? They have asserted DeCSS circumvents, but what of CSS does it circumvent? Does it allow access without paying the copyright holder payment that CSS would require? No. Does it allow access more frequently than CSS would allow? No. Does it failure to require information (password, key, id, license, serial number) separate from the work or player required by CSS? No. Does perform fewer tests for pirated disc's than CSS? No. Does DeCSS provide cleartext of the work when CSS does not? No, else how would DOD's ripper work. a1A "measure that effectively controls access" (2) How does CSS control access? What users are denied access? Define access. a3A 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 (3) Again as compared to CSS how is DeCSS different in terms of it's "descramble", "decrypt" or "remove" functionality. Both expose the plaintext to further copying. One from the hard disk, the other from the video stream (at various stages) throughout the player. Absent software players one might be able to make this distinction, but operating in the context of a general purpose insecure computing environment, show DeCSS material differnce. a3A "without the authority of the copyright owner" (4) How is the authority of the copyright conveyed during CSS? What authority is granted to the user? What notification is the user given of the extent and limit of her/his authority? How is it obtained by the user? Where is it obtained by the user? When is it obtained by the user? How is this authority conveyed to the user? How is this authority verified by CSS? Finally how does DeCSS differ w.r.t CSS in these terms? a3(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. (5) What information or process does CSS apply with the authority of the copyright owner? What is the information or process? Where does the information come from? How does it convey the authority of the copyright owner? How is a "plays all disks" process non-pretextual? (6) How can an "always plays" system (one that requires no user/license information) be considered covered by 1201a3 when the system doesn't control access but always grants it? (sadly the Court has a true lack of skepticism regarding the claims of the P's). Given that the P's have never addressed (4) especially, how can they claim circumvention. It's like claiming trespassing by asserting that party A was at a certain map coordinates, but not showing the property lines, title, deed or other evidence of ownership over the property. Only claiming breach of contract without ever submitting what the terms of the contract were. They've never shown their authority model, or how DeCSS violates it. Note that authority deals with the end user and the DVD-CCA agreements with the P's or the mfg's is irrelevant. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:36:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA13847 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:36:44 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA13843 for ; Mon, 24 Jul 2000 17:36:42 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id RAA08672; Mon, 24 Jul 2000 17:36:57 -0400 Message-ID: <397CB6F9.42A9624@mit.edu> Date: Mon, 24 Jul 2000 17:36:57 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Shotgun Analogy 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 more I look at Kaplan's shotgun analogy, the worse it looks. What Garbus is arguing is that there are lots of guns firing lots of bullets. Plaintiffs are pointing to a few bullets in a few corpses and asking that one particular gun be locked up. They seem to feel perfectly safe walking around while the other guns are firing. This suggests that there is some other reason they wanted that particular gun locked up. And Kaplan _still_ doesn't seem to understand this point. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:40:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14008 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:40:08 -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 RAA14005 for ; Mon, 24 Jul 2000 17:40:07 -0400 Message-ID: <20000724213857.8973.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Mon, 24 Jul 2000 14:38:57 PDT Date: Mon, 24 Jul 2000 14:38:57 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD 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 How good/bad is it? How can you tell that it's from a camcorder? --- hammer wrote: > DivX uses a .AVI extension > > The copy of Xmen floating around is a camcorder recording - I have > just got hold of it - I do not intend to reveal my source, > before anyone asks - If it will help the case I can pass it > along. You will need a decent connection though. The earliest I can > do this is from work 2100 GMT on Tues. > > And no, I am not a pirate, just someone who hangs around in the > right/wrong places :) > > At 13:47 24/07/2000 -0700, you wrote: > > >--- Bryan Taylor wrote: > > > A poster on Slashdot says he has seen X-Men on DivX and that the > > > quality is actually pretty good. It is not available on DVD (it's > > > still in the theaters). > > > >Here's a really stupid question: what file extention does a DivX > file use? How can you identify that a given file is a DivX file? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:45:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14281 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:45:54 -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 RAA14278 for ; Mon, 24 Jul 2000 17:45:53 -0400 Received: from ip164.bedford9.ma.pub-ip.psi.net ([38.32.79.164]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Gq2E-0005wi-00 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 17:45:14 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Difference between DeCSS and other DVD decoding programs Date: Mon, 24 Jul 2000 17:39:02 -0400 Message-ID: <6mdpnso39pu49c0e68ipbl4dlamp0g3s1e@4ax.com> References: <397CAE8C.B813D999@uic.edu> In-Reply-To: <397CAE8C.B813D999@uic.edu> 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 RAA14279 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 24 Jul 2000 16:01:00 -0500, John Schulien wrote: >DeCSS, DOD, DVD rip, etc all provide the same >capability -- the ability to obtain an uncompressed unencrypted ^^^^^^^^^^^^ >MPEG from a DVD disc. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:48:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14378 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:48:16 -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 RAA14375 for ; Mon, 24 Jul 2000 17:48:15 -0400 Message-ID: <20000724214706.2355.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Mon, 24 Jul 2000 14:47:06 PDT Date: Mon, 24 Jul 2000 14:47:06 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! 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 Why are people obsessed with this? It's totally weak. 1201(a)(1) is not effective yet. Shamos used an unlicenced player. This is still legal until October. Shamos did not distribute any player, as the MPAA argues would be prohibited by 1201(a)(2). Shamos did not comit simple copyright infringement because he had authorization. Because of the relevence to a trial, it is probably fair use anyway. --- John Schulien wrote: > Ravi Nanavati wrote: > > > No one knows what the terms of [the CCA license is] > > but one of the terms is probably (or can retroactively > > made to be without us knowing) an exclusive grant > > of authority to the DVD CCA to grant others the > > authority to descramble the CSS-encrypted DVD > > version of the work. > > Ok the original testimony was: > > > 12 Q. Can Warner decide on its own to allow a company to play > > 13 its DVDs without that company having a license from the > > 14 DVD-CCA? > > > 15 A. No, not if we have encrypted the movie. > > King testified that Warner does NOT have the authority > to grant authority to run CSS. Therefore, either: > > 1) Shamos obtained a special license from the DVD > CCA to conduct the demonstration. > > 2) Warner has violated the CCA contract by contracting > Shamos to engage in an actual, real life commercial > use of DeCSS. > > 3) Shamos acted illegally. > > 4) King lied. > > or > > 5) Shamos acted legally, in which case the > defendants also acted legally. > > I mean, the point I'm making, is that, if this were a trial > about pickpocketing, it would not be acceptable for > the plaintiff to hire an "expert" to go to Grand Central > Station and actually pickpocket a couple of people, > then show up at trial and display his collection of > watches and wallets. > > How is it that Shamos is allowed to commit the > same "crime" as the defendants, and enter the > fruits of his "crime" into evidence? > > Or am I missing something? > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 17:53:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA14612 for dvd-discuss-outgoing; Mon, 24 Jul 2000 17:53:56 -0400 Received: from dial121.roadrunner.com (sf-du121.cybermesa.com [209.12.75.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA14609 for ; Mon, 24 Jul 2000 17:53:53 -0400 Received: (from paul@localhost) by dial121.roadrunner.com (8.8.7/8.8.7) id PAA02992 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:54:13 -0600 Date: Mon, 24 Jul 2000 15:54:12 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! Message-ID: <20000724155412.A2858@localhost> References: <397CB345.3D5F55C7@uic.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <397CB345.3D5F55C7@uic.edu>; from jms@uic.edu on Mon, Jul 24, 2000 at 04:21:09PM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 04:21:09PM -0500, John Schulien wrote: > Ravi Nanavati wrote: > > > No one knows what the terms of [the CCA license is] > > but one of the terms is probably (or can retroactively > > made to be without us knowing) an exclusive grant > > of authority to the DVD CCA to grant others the > > authority to descramble the CSS-encrypted DVD > > version of the work. > > Ok the original testimony was: > > > 12 Q. Can Warner decide on its own to allow a company to play > > 13 its DVDs without that company having a license from the > > 14 DVD-CCA? > > > 15 A. No, not if we have encrypted the movie. > > King testified that Warner does NOT have the authority > to grant authority to run CSS. Therefore, either: You mean DeCSS, right? > 1) Shamos obtained a special license from the DVD > CCA to conduct the demonstration. > > 2) Warner has violated the CCA contract by contracting > Shamos to engage in an actual, real life commercial > use of DeCSS. > > 3) Shamos acted illegally. > > 4) King lied. > > or > > 5) Shamos acted legally, in which case the > defendants also acted legally. > > I mean, the point I'm making, is that, if this were a trial > about pickpocketing, it would not be acceptable for > the plaintiff to hire an "expert" to go to Grand Central > Station and actually pickpocket a couple of people, > then show up at trial and display his collection of > watches and wallets. > > How is it that Shamos is allowed to commit the > same "crime" as the defendants, and enter the > fruits of his "crime" into evidence? Actually, I think it is more subtle than this. Shamos isn't (a)(2) distributing, he would be (a)(1) circumventing. Your point still stands though --- would Shamos' actions be hypothetically valid after Oct. 28th or not? The testimony would seem to indicate that his actions would be legal even after Oct. 28th, so isn't that a legitimate, non-circumventing use for DeCSS? (All this assume of course that CSS is actually "protecting" access, a position which I reject for other reasons.) > Or am I missing something? I think it is a valid point. To really hammer it home though, I think you should mention that all the technological ways to distinguish DeCSS from the Xing player having *nothing* to do with the function of descrambling. The technological differences are the presence or absence of technological features the are required, permitted or forbidden by the DVD-CCA license aside from the CSS-descrambling. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:02:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15360 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:02:01 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15357 for ; Mon, 24 Jul 2000 18:01:59 -0400 Received: by aero.org id <17125-2>; Mon, 24 Jul 2000 15:00:52 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKLBa11663; Mon Jul 24 14:59:58 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 14:39:22 -0700 Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 02:39:22 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 15:00:17 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I wouldn't worry about the legality of Shamos' actions. I'm certain the necessary paper work was done or will be done. John Schulien @eon.law.harvard.edu on 07/24/2000 02:23:31 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Authority to decode CSS does not come from Warner! Ravi Nanavati wrote: > No one knows what the terms of [the CCA license is] > but one of the terms is probably (or can retroactively > made to be without us knowing) an exclusive grant > of authority to the DVD CCA to grant others the > authority to descramble the CSS-encrypted DVD > version of the work. Ok the original testimony was: > 12 Q. Can Warner decide on its own to allow a company to play > 13 its DVDs without that company having a license from the > 14 DVD-CCA? > 15 A. No, not if we have encrypted the movie. King testified that Warner does NOT have the authority to grant authority to run CSS. Therefore, either: 1) Shamos obtained a special license from the DVD CCA to conduct the demonstration. 2) Warner has violated the CCA contract by contracting Shamos to engage in an actual, real life commercial use of DeCSS. 3) Shamos acted illegally. 4) King lied. or 5) Shamos acted legally, in which case the defendants also acted legally. I mean, the point I'm making, is that, if this were a trial about pickpocketing, it would not be acceptable for the plaintiff to hire an "expert" to go to Grand Central Station and actually pickpocket a couple of people, then show up at trial and display his collection of watches and wallets. How is it that Shamos is allowed to commit the same "crime" as the defendants, and enter the fruits of his "crime" into evidence? Or am I missing something? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:04:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15658 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:04:45 -0400 Received: from mailhost2.dircon.co.uk (mailhost2.dircon.co.uk [194.112.32.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15655 for ; Mon, 24 Jul 2000 18:04:41 -0400 Received: from celly.dircon.co.uk (gibbed.dircon.co.uk [194.112.43.178]) by mailhost2.dircon.co.uk (8.9.3/8.9.3) with ESMTP id XAA07117 for ; Mon, 24 Jul 2000 23:03:51 +0100 (BST) Message-Id: <4.3.2.7.2.20000724225637.00b8f008@194.112.32.33> X-Sender: gibbed@194.112.32.33 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 24 Jul 2000 23:03:29 +0100 To: dvd-discuss@eon.law.harvard.edu From: gibbed Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD In-Reply-To: <20000724213857.8973.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id SAA15656 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Quality is a little rough although the audio is kind of ok Its actually whats called a "telesynch" - This is where the audio is taken from an external source, like the projector if its shot in a cinema from the screen, or from an output on the TV/VCR if its shot from there. In other words, not using the built in mic on the camcorder (this is a dead giveaway if the sound is very hollow. How can I tell - The usual giveaways - Washed out colours, cropped edges, people getting up out of their seats during the performance :)) Please be aware, my offer was not for entertainment but for use in the case only. Slamdunk At 14:38 24/07/2000 -0700, you wrote: >How good/bad is it? >How can you tell that it's from a camcorder? > >--- hammer wrote: > > DivX uses a .AVI extension > > > > The copy of Xmen floating around is a camcorder recording - I have > > just got hold of it - I do not intend to reveal my source, > > before anyone asks - If it will help the case I can pass it > > along. You will need a decent connection though. The earliest I can > > do this is from work 2100 GMT on Tues. > > > > And no, I am not a pirate, just someone who hangs around in the > > right/wrong places :) > > > > At 13:47 24/07/2000 -0700, you wrote: > > > > >--- Bryan Taylor wrote: > > > > A poster on Slashdot says he has seen X-Men on DivX and that the > > > > quality is actually pretty good. It is not available on DVD (it's > > > > still in the theaters). > > > > > >Here's a really stupid question: what file extention does a DivX > > file use? How can you identify that a given file is a DivX file? > > > >__________________________________________________ >Do You Yahoo!? >Get Yahoo! Mail ­ Free email you can access from anywhere! >http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:08:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15748 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:08:46 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15745 for ; Mon, 24 Jul 2000 18:08:45 -0400 Received: by aero.org id <17155-3>; Mon, 24 Jul 2000 15:07:41 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEMBa11663; Mon Jul 24 15:01:23 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 14:41:41 -0700 Subject: Re: [dvd-discuss] Goldstein, July 21, p.820: CSS and copying To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 02:41:40 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 15:01:47 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well it's consistent. They keep saying PIRACY PIRACY PIRACY when the issue is CONTROL CONTROL CONTROL Paul Fenimore @eon.law.harvard.edu on 07/24/2000 02:33:16 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Goldstein, July 21, p.820: CSS and copying Logical fallacy alert! Plaintiffs are at it again. Page 820, Friday July 22nd, Goldstein's testimony on DeCSS and copying: 10 Q. We left off yesterday discussing a statement that you had 11 made and I am going to give it to you again. Did you not at 12 one point in time, after October of '99, state that DeCSS was 13 a free DVD decoder that allows people to copy DVDs? DeCSS does not "allow" the copying of DVDs. DVDs can be copied with or without descrambling. Acts of copying can be independent of acts of descrambling. The fact that all acts of descrambling a read-only DVD disk are dependent on acts of copying does nothing to contradict this. A -> B does not require that B -> A. The P's are depending on a logical fallacy. 14 A. That was a statement that was made on our web site which I 15 did not write but I take responsibility for. It was at some 16 point after it was published on our web site I believe in 17 November that we realized that it was a lot more complicated 18 than just that and we -- future writings on the web site 19 reflected this. [ ... ] Page 821: [ ... ] 21 Q. Let me ask you, Mr. Goldstein, is it not true that DeCSS 22 is a free DVD decoder that allows people to copy DVDs? No. Mere association with an act of copying does nothing to establish that the association was causative or enabling. 23 A. I believe it allows the data to be copied to a hard drive 24 at some point during its operation as do many other utilities 25 but I believe that it can do that if you write it in a Page 822: 1 particular way. 2 Q. Then the prior statement you made was correct, I guess? 3 A. Not entirely because it did not exist for the purpose of 4 copying DVDs. One would not run that program to copy DVDs. 5 Q. But you said that it was a free DVD decoder that allows 6 people to copy DVDs and if I understand your testimony this 7 morning, you are saying the same thing? 8 A. It allows you to do that but that's not the purpose of it. 9 Again, I am looking at this from a journalistic perspective. 10 Q. I am not asking you the purpose, I am asking you what it 11 does. It descrambles. Descrambling is not necessary to an act of copying. Copying can occur either in the Hong Kong flavor or over the Internet without descrambling (current practicality aside). The P's attny is trying to use the correct observation that copying is necessary to descrambling (A implies B), and falsely conclude that "B is true" implies "A is true" ==> "DeCSS allows copying". False. DeCSS allows use. This crap the P's are pushing should be blown out of the air. Logical fallacies are bad, bad, bad. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:11:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA15795 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:11:00 -0400 Received: from dial130.roadrunner.com (dial130.cybermesa.com [209.12.75.130] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA15792 for ; Mon, 24 Jul 2000 18:10:58 -0400 Received: (from paul@localhost) by dial130.roadrunner.com (8.8.7/8.8.7) id QAA03164 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:11:17 -0600 Date: Mon, 24 Jul 2000 16:11:16 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. Message-ID: <20000724161116.A3017@localhost> References: <20000724213209.1126.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: <20000724213209.1126.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Jul 24, 2000 at 02:32:09PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 02:32:09PM -0700, Bryan Taylor wrote: > --- Paul Fenimore wrote: > > I'm still digging out from my 11+ days away. I apologize if this is > > already in the record, but it seems to me like a good idea to > > make sure that "descrambling can come either before or after > > copying" is in the evidentiary record. > > I think one of the Princeton Profs testified to it. It's really a > trivial fact. Hopefully this diagram makes it clear: Trivial or no, my understanding is that it has to be in the trial record or it doesn't exist in the appeals process. > R*(D83dE@Cw%eR ---> "Hello World" > | | > | | > V V > R*(D83dE@Cw%eR ---> "Hello World" > > Horizontal: decryption > Vertical : copying (use cut and paste) > > Mathematically, copying produces the identity function among works. The > identity function commutes with anything, so the diagram is commutative > regardless of the actual decryption function. That is, under function > composition for any decryption: > copying o decryption = decryption o copying = decryption > > In fact, for a given player, disc and title key, you can form an > abelian group {decryption^n : n an integer} of string functions under > composition that is isomorphic to the integers. If you don't understand > what I just said, forget it, it's not important. This is what I want to make sure we can use later. The problem is that because the arrows in your diagram correspond to events/process, the plaintiffs claim that their invented classification system for "kinds" of copying is something other than their own private hallucination. In effect they are claiming that your arrows are glossing over real-world complexity (Yes, you and I know the arrows work). This private hallucination of their's seems to have affected other people, and having a clear and simple statement that there is only one kind of arrow in your diagram will be helpful to lifting the hallucination. Claims that there are more than one kind of arrow in the above diagram violate basic principles of causality. Alternatively, I'm saying that your commutation relation for the identity operator is unaffected by considerations of time-ordering. I know that's no different than what you've said, but only if one takes the commutation relation as correct in the first place, which Kaplan doesn't seem to have done. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:29:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16890 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:29:49 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16887 for ; Mon, 24 Jul 2000 18:29:47 -0400 Received: by aero.org id <17173-3>; Mon, 24 Jul 2000 15:28:41 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdFRBa11663; Mon Jul 24 15:28:31 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:11:40 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 03:11:39 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 15:28:38 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Kaplan may be grappling with some judicial issues. Judges do not like to try cases where the plaintiff has singled out an individual and making them responsible for the actions of others [the 30,000 kayakers]. They do not like trying cases where plaintiffs are not suing others who are as guilty. They don't like trying cases on "the principle of it". They don't like abstractions or hypothetical damages. They don't like cases that are brought to make an "example" of someone. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:29:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16883 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:29:43 -0400 Received: from dial77.roadrunner.com (dial77.cybermesa.com [209.12.75.77] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16880 for ; Mon, 24 Jul 2000 18:29:40 -0400 Received: (from paul@localhost) by dial77.roadrunner.com (8.8.7/8.8.7) id QAA03304 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:30:02 -0600 Date: Mon, 24 Jul 2000 16:30:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Questions about the P's burden Message-ID: <20000724163000.B3017@localhost> References: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Mon, Jul 24, 2000 at 03:36:22PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 03:36:22PM -0600, John Zulauf wrote: > After following the brief and strange case by the plaintiffs it struck me > that I didn't know what they were trying to claim about DeCSS and what the > actual basis of the lawsuit is. What is the burden of proof on the > plaintiff's? They seem to be treating 2600 like Franz K and claiming he's > guilty by accusation, but never being clear on what the violation of law is, > or how he violated it. > > They make a big deal about 2600 not being involved in cryptography or > reverse engineering, but have they really met the burden of proof that he > violated 1201 and would need this defense in the first place? "You have no > alibi for the time we accuse you of dancing the hokey-pokey, therefore you > are guilty!" But wouldn't one have to show that dancing the hokey-pokey is > in fact illegal? 2600 posted DeCSS, that's established. DeCSS can decrypt > CSS encoded DVD's. That's established. DeCSS contains information that was > a trade secrect. That's established. DVD cleartext audio/video (once > obtained by any of several means) can be compressed into lower quality audio > and video. That's established. There are copyright violating pirates in this > world. That's established. Files can be copied over the internet. Duh. > That's established. > > The claim is against circumvention. That's asserted, essentially with the > claim, "it's circumvention because we say so." The rest of the established > facts don't address the core claim at all. We have a big pile of manure, but > where's the pony? > > I understand the claim that DeCSS is a 1201 "circumvention" device but I > don't understand how they have met their burden of proof. Here are the > things I think they would need to show and didn't address in the slightest. > I assert (with detail below) that: > > * They haven't met the burden of showing that DeCSS is circumvention > > * They haven't met the burden of showing that DeCSS allows access without > the authority of the copy holder. > > * They haven't met the burden of showing that CSS is effective under 1201. I think the lawyer-speak for this is that circumvention is a conclusion of law, not a finding of fact. The P's are trying to take a finding of fact, that DeCSS descrambles the ciphertext to make the plaintext, and coast home on establishing lack of authority, lack of significant non-circumventing commercial use, etc. which are all necessary for the conclusion of law that DeCSS is a circumvention device. That's not even touching the issue that neither the court nor the plaintiffs have offered a consistent definition of access, which if chosen to avoid constitutional questions and maintain the internal consistency of the statute, voids _all lawsuits in this class_ as being outside the scope of 1201(a). Even if the P's fail to coast home on a single finding of fact (i.e. fail to get the finding of fact that descrambling is possible bootstrapped into a conclusion of law == circumvention) they might win the war --- by getting access defined as descrambling a ciphertext to generate the plaintext, rather than access being the commercial transaction that compensates the copyright owner. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:33:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17043 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:33:03 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17040 for ; Mon, 24 Jul 2000 18:33:03 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QB0H>; Mon, 24 Jul 2000 18:37:22 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E8B@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Questions about the P's burden Date: Mon, 24 Jul 2000 18:37:21 -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 This is not a reasonable doubt case. All they need to show is that it is *more likely than not* the action of 2600 -- linking to DeCSS, linking to sites that supply DeCSS -- violates 1201. (Hopefully a lawyer will correct me if I am mistaken on this. I learned the law from CourtTV). The court can just stop 2600, or issue a declaratory judgment. The Ps have amended the complaint to not request damages (I assume that is practical, 2600 doesn't have a lot of money, it would be like bleeding a turnip). There is a huge problem with the way courts work when a very focused case is defended using a broad spectrum attack. In order to really flesh out the defense case, the defense must cover contract, copyright, antitrust, and first amendment issues. Most of their attempts to get into these subjects are objected to and omitted for relevance. By the way -- one of the serious problems with rushing this case to trial, I think, is that the defense was unable to provide a more organized argument from the beginning. This is not the fault of the attorneys, who have put a tremendous amount of time into the case. It is simply that it takes time to discover, debate, and formulate an argument. We have been thinking about it for a long time, and are still working on the best way to explain the issues. I would hazard a guess that the appeals will concentrate, in part, on the failure to allow all the relevant defense arguments. I also think that the rush to trial could be important as well. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:38:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17122 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:38:18 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17119 for ; Mon, 24 Jul 2000 18:38:17 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id PAA23878 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:48:33 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy Date: Mon, 24 Jul 2000 15:43:28 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0007241548320I.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This doesn't seem to jibe with Kaplan's behavior. He seems solidly on the side of the plaintiffs, and even moreso, he doesn't seem to have any qualms whatsoever about the motives behind this case. I'm not disagreeing with you, I'm trying to figure out how your statement corresponds with the obvious realities of this case. Kaplan seems to have no problem with this case - in fact, he seems eager to find against the defendants. It's just proving to be harder than he thought to find a way and the defendants are putting up much more of a fight than he expected at first. Could you please show locations in the transcript where this is even remotely apparent? I can find very few. Even when he is referring to the kayackers and the bullets, he seems to be trying to find an argument against the defendants. The only point he made was that issuing an injunction would be almost worthless because the genie is out of the bottle - reading between the lines that he would issue it if it would make sense to do so. And I have read through a lot of the transcript, boring and procedural as it may be. --James (Russell) On Mon, 24 Jul 2000, you wrote: > Kaplan may be grappling with some judicial issues. Judges do not like to > try cases where the plaintiff has singled out an individual and making them > responsible for the actions of others [the 30,000 kayakers]. They do not > like trying cases where plaintiffs are not suing others who are as guilty. > They don't like trying cases on "the principle of it". They don't like > abstractions or hypothetical damages. They don't like cases that are > brought to make an "example" of someone. -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:45:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17209 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:45:55 -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 SAA17206 for ; Mon, 24 Jul 2000 18:45:54 -0400 Message-ID: <20000724224446.17941.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Mon, 24 Jul 2000 15:44:46 PDT Date: Mon, 24 Jul 2000 15:44:46 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD 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 sent a message to Hernstadt and to the EFF. You may get an email to hammer@neophile.net if they are interested in it. --- gibbed wrote: > Please be aware, my offer was not for entertainment but for use in > the case only. > > Slamdunk > > > At 14:38 24/07/2000 -0700, you wrote: > >How good/bad is it? > >How can you tell that it's from a camcorder? > > > >--- hammer wrote: > > > DivX uses a .AVI extension > > > > > > The copy of Xmen floating around is a camcorder recording - I > have > > > just got hold of it - I do not intend to reveal my source, > > > before anyone asks - If it will help the case I can pass it > > > along. You will need a decent connection though. The earliest I > can > > > do this is from work 2100 GMT on Tues. > > > > > > And no, I am not a pirate, just someone who hangs around in the > > > right/wrong places :) > > > > > > At 13:47 24/07/2000 -0700, you wrote: > > > > > > >--- Bryan Taylor wrote: > > > > > A poster on Slashdot says he has seen X-Men on DivX and that > the > > > > > quality is actually pretty good. It is not available on DVD > (it's > > > > > still in the theaters). > > > > > > > >Here's a really stupid question: what file extention does a DivX > > > file use? How can you identify that a given file is a DivX file? > > > > > > > >__________________________________________________ > >Do You Yahoo!? > >Get Yahoo! Mail ­ Free email you can access from anywhere! > >http://mail.yahoo.com/ > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:48:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17313 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:48:02 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA17310 for ; Mon, 24 Jul 2000 18:48:01 -0400 Received: from agape.murphy.cx ([198.223.37.198]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA7A2 for ; Mon, 24 Jul 2000 18:47:33 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id SAA01550 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 18:46:47 -0400 Date: Mon, 24 Jul 2000 18:46:46 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy Message-ID: <20000724184646.B1098@agape.murphy.cx> References: <397CB6F9.42A9624@mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <397CB6F9.42A9624@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Mon, Jul 24, 2000 at 05:36:57PM -0400, thus spake Ravi Nanavati: > The more I look at Kaplan's shotgun analogy, the > worse it looks. You misunderstood him. It was not an analogy. It was an actual reference to a real case that, apparently, is taught in law school to illustrate liability law. The question that the case raises is who has the burden of proof the plaintiffs or the defendants. Kaplan asked for briefs on the matter and he conceded that product liability law has certainly developed from that point. > What Garbus is arguing is that > there are lots of guns firing lots of bullets. Garbus will have to provide a brief stating who has the burden of proof in *this* case (I strongly suggest that he would say the plaintiffs) and citing appropriate case law to support that position. Kaplan has just asked the parties to deal with the issue raised in the case he quoted, he is not suggesting that case is controlling, just that it is a legal issue he needs addressed. The briefs will convince him who has the burden of proof here. > Plaintiffs are pointing to a few bullets in > a few corpses and asking that one particular > gun be locked up. They seem to feel perfectly > safe walking around while the other guns are > firing. This suggests that there is some other > reason they wanted that particular gun locked up. > And Kaplan _still_ doesn't seem to understand > this point. You seem to want to operate from the assumtion that Kaplan is in fact biased. I've read all of the case transcripts. He sustains and overrules objections from either side. If one side complains about hearsay, he holds them to the same standard when the shoe is on the other foot. Complaining about the judge is not an effective strategy. Kaplan understands a great deal. He is predisposed, as are most good judges, to upholding the law unless there is a clear precedent for it being unconstitutional. All of those issues will get a much better hearing on appeal. -- Roy Murphy \ CSpice -- A mailing list for Clergy Spouses murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:59:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17878 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:59:05 -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 SAA17867 for ; Mon, 24 Jul 2000 18:58:56 -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 SAA18957 for ; Mon, 24 Jul 2000 18:58:16 -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 SAA29815 for ; Mon, 24 Jul 2000 18:55:58 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000724112232.A1311@localhost> References: <20000724112232.A1311@localhost> Date: Mon, 24 Jul 2000 18:55:52 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? 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 11:22 AM -0600 7/24/2000, Paul Fenimore wrote: >page 818: > > 14 Just by way of a parenthetical digression, I am well > 15 aware that the issue of the extent to which there is > 16 sufficient proof that there are in fact decrypted movies > 17 available over the Internet has not been decided and we are > 18 going to have further discussion about that. My question > 19 presupposes, just on a hypothetical basis, if there is > 20 adequate proof to find that there are such movies out there. > >Kaplan is under the delusion that distributing a scrambled or >encrypted movie over the internet is copy control. This is wrong. >Descrambling comes either before or after copying. By the requirement >that a cause must preceed an effect, descrambling cannot be >controlling copying. Scrambling controls use as in performance >of the plaintext, not copying. I think the argument here is that by allowing access to plaintext, DeCSS permits the compression that is necessary to produce a 650MB movie file, which is arguably a size were Internet posting becomes feasible, at least for users with high speed access. The MPAA claims that 650 MB Divx files started appearing on the Internet shortly after DeCSS was posted. Suppose the MPAA had been able to exhibit a copyrighted move in Divx format that it had downloaded from one of these sites after DeCSS was posted and was able to further prove that DeCSS was used to decrypt the data that was then Divx compressed. Then I think there would be a strong case that the plaintiffs had actually been damaged by DeCSS. The MPAA has two problems. First it has not shown that DeCSS was used. That is where the shotgun case comes in. The Judge is saying that case (Summers v. Tyce) suggests plaintiffs don't have to prove that DeCSS was used to decrypt the files, rather the defense has to prove it wasn't. The second problem is that plaintiffs have not exhibited even one of the allegedly posted Divx files. It only attempted to show that some Internet sites **claim** to have Divx movie files available. The Judge questioned whether that constituted sufficient proof. (The defense says it is hearsay.) As the Judge put it [July 20 p. 665 line 6]: "And the way those kinds of issues are usually handled in a trademark case is that the investigator comes in and says that I went to the store on Fordham Road and I bought these six pairs of counterfeit jeans and here they are, and a witness shows up from Levis and says we didn't make them, they're counterfeit." The judge later suggested some arguments the plaintiffs might use to save their hides on this point [see p. 666 l. 18], but if I were the defense, I would use the shotgun argument to say "Look, if the burden of proof is on us, you must require the plaintiffs to have produced the actual files at discovery. Then we should have been given enough time to show that the files in evidence were not decoded by DeCSS, either by applying forensic tests or by tracing them to the source. Plaintiffs haven't done that, so there is no proof of any damage" The bad news it that the MPAA will know what to do next time. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 18:58:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17873 for dvd-discuss-outgoing; Mon, 24 Jul 2000 18:58:57 -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 SAA17868 for ; Mon, 24 Jul 2000 18:58:56 -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 SAA18956 for ; Mon, 24 Jul 2000 18:58:15 -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 SAA29809 for ; Mon, 24 Jul 2000 18:55:57 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <20000724105044.A13667@inka.de> References: <20000724105044.A13667@inka.de> Date: Mon, 24 Jul 2000 17:32:28 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Day 5 Trial Transcript 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 10:50 AM +0200 7/24/2000, Sham Gardner wrote: >Refering to the demonstration of the LiViD player requested by the defence: > > 13 THE COURT: How long is it going to take, Mr. > 14 Hernstadt? > 15 MR. HERNSTADT: The demonstration? > 16 THE COURT: Yes. > 17 MR. HERNSTADT: A few minutes. > 18 THE COURT: Relax, Mr. Cooper. > >Can anyone who was there shed some light on that last line? > The plaintiffs were objecting to the demonstration. He was telling their lawyer, Mr. Cooper, in a friendly sort of way to sit down and shut up. You might also read in an assurance that he was not going to be swayed by a single example of a movie that looked crummy after a defense expert compressed it (which is what the demo was about). This is typical of the way Kaplan controls his court. He'd rather hear evidence if it isn't too long than argue about it. At another point he answered one of the lawyer's objections by saying he would hear the testimony and if he did not refer to it in his opinion, "you can assume it was sustained." Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:03:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18063 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:03:01 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18060 for ; Mon, 24 Jul 2000 19:02:59 -0400 Received: by aero.org id <17105-1>; Mon, 24 Jul 2000 16:02:09 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdWXBa11663; Mon Jul 24 16:02:01 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:43:53 -0700 Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 03:43:52 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 16:02:05 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu KISS...a copy is a copy. Bits are bits. Paul Fenimore @eon.law.harvard.edu on 07/24/2000 03:11:24 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. On Mon, Jul 24, 2000 at 02:32:09PM -0700, Bryan Taylor wrote: > --- Paul Fenimore wrote: > > I'm still digging out from my 11+ days away. I apologize if this is > > already in the record, but it seems to me like a good idea to > > make sure that "descrambling can come either before or after > > copying" is in the evidentiary record. > > I think one of the Princeton Profs testified to it. It's really a > trivial fact. Hopefully this diagram makes it clear: Trivial or no, my understanding is that it has to be in the trial record or it doesn't exist in the appeals process. > R*(D83dE@Cw%eR ---> "Hello World" > | | > | | > V V > R*(D83dE@Cw%eR ---> "Hello World" > > Horizontal: decryption > Vertical : copying (use cut and paste) > > Mathematically, copying produces the identity function among works. The > identity function commutes with anything, so the diagram is commutative > regardless of the actual decryption function. That is, under function > composition for any decryption: > copying o decryption = decryption o copying = decryption > > In fact, for a given player, disc and title key, you can form an > abelian group {decryption^n : n an integer} of string functions under > composition that is isomorphic to the integers. If you don't understand > what I just said, forget it, it's not important. This is what I want to make sure we can use later. The problem is that because the arrows in your diagram correspond to events/process, the plaintiffs claim that their invented classification system for "kinds" of copying is something other than their own private hallucination. In effect they are claiming that your arrows are glossing over real-world complexity (Yes, you and I know the arrows work). This private hallucination of their's seems to have affected other people, and having a clear and simple statement that there is only one kind of arrow in your diagram will be helpful to lifting the hallucination. Claims that there are more than one kind of arrow in the above diagram violate basic principles of causality. Alternatively, I'm saying that your commutation relation for the identity operator is unaffected by considerations of time-ordering. I know that's no different than what you've said, but only if one takes the commutation relation as correct in the first place, which Kaplan doesn't seem to have done. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:06:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18290 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:06:09 -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 TAA18286 for ; Mon, 24 Jul 2000 19:06:08 -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 TAA20444 for ; Mon, 24 Jul 2000 19:05:28 -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 TAA04907 for ; Mon, 24 Jul 2000 19:03:20 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <397BD9CF.296AE590@mninter.net> References: <397BD9CF.296AE590@mninter.net> Date: Mon, 24 Jul 2000 19:03:16 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 5 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 12:53 AM -0500 7/24/2000, Chris Moseng wrote: >"Arnold G. Reinhold" wrote: > > Next Prof. Larry Peterson testified as an expert on networks. ... > >Someone might want to remind the defense that there is a significant >difference between aggregate internet bandwidth and an individual's >bandwidth to their ISP. At least from this retelling, it sounds as if >they were testifying about internet bandwidth as a whole, but ignoring >the fact that the internet could operate at the speed of light, but it >would not speed my 56k modem one iota. And 56k modems is whats people's >gots. > Prof. Peterson was testifying mostly about backbone capacity, not the "last mile." At 5:21 AM -0400 7/24/2000, Eric Eldred wrote: >On Sun, Jul 23, 2000 at 11:38:42PM -0400, Arnold G. Reinhold wrote: >> A Visit to the Twelfth Dimension >> >> By Arnold Reinhold >>[...] >> The next day the Judge started by telegraphing his opinion on a line >> of testimony from Thursday. The defense, during Ms. Rider's cross, >> had tried to show that there were other technologies (e.g. DOD [Drink >> or Die] Ripper) that could have been used to produce the pirated >> material that she claims is now on the net. The Judge compared the >> argument with a classic law school case where two people fire a >> shotgun and only one shot hits a victim. Kaplan says it is each >> shooter's burden of proof to show that his shotgun was not the one >> that hit the victim. > >But the witness also said--and this bears repeating--that there >is no evidence at all that DeCSS is used in this process, and >the plaintiffs had to stipulate that point. There is no sense >in the judge's joke about two people firing a shotgun, unless >you can prove that two shotguns were actually fired instead of >one. With shotguns that could be proved with forensic exams; >why can't the studios prove it, given the money they pay to their >investigators? Kaplan wasn't making a joke, he was indicating his view of the law. Several programs could have been employed to produce the DivX movie files allegedly posted to the Internet. DeCSS is one of them. He is saying that MPAA doesn't have to prove that DeCSS was used, the defense has to prove it wasn't. > >> The judge was very interested in the notion that there were two kinds >> of links: those that went directly to the DeCSS program and >> downloaded it and those that went to a web site where DeCSS was >> offered. He specifically asked about "deep linking." I infer that he >> is thinking he might bar the former kind of link but not the latter. >> To me this is like saying you can reference a book but not give a >> page number. > >Take a look at Carl Kaplan's NYT column and see where he links at >the bottom. Do you think it is any different from 2600? My interpretation of the Judges comments is that he is trying to construct a class of links he can ban. If he does, it will affect the New York Times, at least its online edition, as well. Will that stand on appeal? I'd bet it wouldn't, but not a lot of money. > >> Next Prof. Larry Peterson testified as an expert on networks. The >> thrust of his testimony was that the Internet would take a long time >> to grow enough bandwidth to support large amounts of 650MB files >> being downloaded. The Judge took over the questioning at one point >> to get the witness to say the net has finite capacity now, lots of >> 650MB files would strain the net but that capacity could be added. >> The defense then tried to establish that a 100 fold increase in >> bandwidth would be needed and that it took the net 10 years for the >> last 100 fold increase. I didn't find the argument very strong. The >> Judge was obviously not impressed. > >I have a cable modem. Many cable modems will now be part of >the AOL/Netscape/Time-Warner empire. Do you imagine that such >a network would not be able to find a way to identify downloads >of network-hogging video files and either cut them off or cut off >the customers who do it? If my cable service provider prevented me from downloading a 650MB file, say the latest Linux distribution, I'd be pretty annoyed. No ISP bats an eyelash if someone with a dial-up connection downloads a 20MB file. Why should they object if someone on a cable connection, which is 50x faster, downloads a 1 GB file every now and then? > >> Finally Prof. Peter Ravich (sp?) testified as an expert on video >> compression. The first part of his testimony was a very clear example >> of how helpful DeCSS would be to his research. His group writes >> software to index video and DVD are an unsurpassed source of good >> video once they are decrypted. His is a very narrow case but it was >> well made. >> >> He then went on to explain why compressing DVDs down to fit in a 650 >> MB file would produce results that the "average person would say >> stinks." He cited his experiments on the movie Contact. Judge Kaplan >> was clearly skeptical and indicated that he would watch the DivX >> sample provided by MPAA and form his own opinion. (Contact may be a >> poor example since it is so long. www.imdb.com says the US version is >> 153 minutes). The Judge also asked about Fractile compression and >> the "Genuine Fractile" product and seemed miffed that the witness >> hadn't heard of it. > >What is the relevance of fractal compression? The studios claim >that DeCSS allows "bit-for-bit" copying. But they have not shown >that here. The only way DVD copies could practically be distributed >is with lossy compression. Some DVD players apparently allow one >to send to videotape the output. Decryption is only one of many >ways to "pirate" a DVD. The question at that point in the trial was whether there was likely to be any breakthroughs in compression technology. The witness said he expected only incremental improvements. The judge then asked about Genuine Fractile. On the broader issue, I think the MPAA is also saying that by allowing lossy compression to a size where Internet file exchange starts to be feasible DeCSS is a circumventing technology. I don't agree but I suspect the Judge will. > >> I must say I have a much higher opinion of Judge Kaplan after >> attending the trial. He is very sharp and does not tolerate >> sloppiness on either side. He is taking this case very seriously and >> seems to be trying to grasp the issues, even at the technical level. >> He seems to "get it." > >I think he should be a better listener. He is too sharp. He seems >to have preconceptions and then interrupt to determine whether or >not his preconceptions are true--if they are, he is pleased with >himself. But he risks cutting off testimony that would either be >important for the plaintiffs to prove, because he assumes in his >mind they have proved it, or testimony for the defense, which may >be important for appeal. The impression I got was that he is actually quite a good listener. He generally allows a line of questioning to continue until he sees where it is going. If he is already convinced or thinks the question is irrelevant (for example whether Mr. Corley made any money off of posting DeCSS) he cuts it off. Remember he is both judge and jury in this case. If he feels one party has proved a point, it's is proved. He has to give the other party a chance to rebut, of course, and he seems more patient in that mode. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:08:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18578 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:08:13 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18575 for ; Mon, 24 Jul 2000 19:08:11 -0400 Received: by aero.org id <17122-4>; Mon, 24 Jul 2000 16:07:21 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQZBa11663; Mon Jul 24 16:06:56 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 15:56:47 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 03:56:47 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 16:07:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't disagree. Kaplan seems to be buying the "screaming hoards of hackers clogging the internet with pirated films robbing the financially troubles studios of their slim profits from all the loser films they put out" nonsense the plaintiffs are dishing up in their Hollywood Press Releases. People have commented that he doesn't like to be "played for a fool" by either side. He may be finding out that what seemed like a cut and dried case isn't and now has to deal with some judicial issues. Appelate court judges REALLY take a dim view of cases if this kind and may look for ANY reason to overrule. [Remember the Tennessee Supreme Court overruled the Scopes verdict because the Judge set the sentence and not the Jury] Jim Miller @eon.law.harvard.edu on 07/24/2000 03:38:41 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy This doesn't seem to jibe with Kaplan's behavior. He seems solidly on the side of the plaintiffs, and even moreso, he doesn't seem to have any qualms whatsoever about the motives behind this case. I'm not disagreeing with you, I'm trying to figure out how your statement corresponds with the obvious realities of this case. Kaplan seems to have no problem with this case - in fact, he seems eager to find against the defendants. It's just proving to be harder than he thought to find a way and the defendants are putting up much more of a fight than he expected at first. Could you please show locations in the transcript where this is even remotely apparent? I can find very few. Even when he is referring to the kayackers and the bullets, he seems to be trying to find an argument against the defendants. The only point he made was that issuing an injunction would be almost worthless because the genie is out of the bottle - reading between the lines that he would issue it if it would make sense to do so. And I have read through a lot of the transcript, boring and procedural as it may be. --James (Russell) On Mon, 24 Jul 2000, you wrote: > Kaplan may be grappling with some judicial issues. Judges do not like to > try cases where the plaintiff has singled out an individual and making them > responsible for the actions of others [the 30,000 kayakers]. They do not > like trying cases where plaintiffs are not suing others who are as guilty. > They don't like trying cases on "the principle of it". They don't like > abstractions or hypothetical damages. They don't like cases that are > brought to make an "example" of someone. -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:14:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18652 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:14:07 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18648 for ; Mon, 24 Jul 2000 19:14:05 -0400 Received: by aero.org id <17110-1>; Mon, 24 Jul 2000 16:13:09 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQBCa11663; Mon Jul 24 16:12:58 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:10:49 -0700 Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 04:10:48 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 16:13:03 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Of course has anybody noted that the MPAA also keeps saying that the encrypted to prevent perfect copies from being made without degradation? compressing a DVD down to something that can be shown on a computer monitor probably degrades it. MPAA Objective ACHIEVED. WRT to the shotgun. While the starting point for much law, it's not applicable here. The shotgun pellets were so intermingled that there was no way to determine which came from what and a clean miss is nearly impossible if you're gun is pointed in the general direction of something [especially if a smart coroner counted the number of pellets and found nearly double the shot.....John Mortimer used that case as the basis for one of his Rumpole scripts]. Goldstein did comply with the injunction but not their original request. The two others who did comply with the original request are not being sued. Goldstein cannot be held liable for the actions of others only for his own. "Arnold G. Reinhold" @eon.law.harvard.edu on 07/24/2000 03:59:30 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? At 11:22 AM -0600 7/24/2000, Paul Fenimore wrote: >page 818: > > 14 Just by way of a parenthetical digression, I am well > 15 aware that the issue of the extent to which there is > 16 sufficient proof that there are in fact decrypted movies > 17 available over the Internet has not been decided and we are > 18 going to have further discussion about that. My question > 19 presupposes, just on a hypothetical basis, if there is > 20 adequate proof to find that there are such movies out there. > >Kaplan is under the delusion that distributing a scrambled or >encrypted movie over the internet is copy control. This is wrong. >Descrambling comes either before or after copying. By the requirement >that a cause must preceed an effect, descrambling cannot be >controlling copying. Scrambling controls use as in performance >of the plaintext, not copying. I think the argument here is that by allowing access to plaintext, DeCSS permits the compression that is necessary to produce a 650MB movie file, which is arguably a size were Internet posting becomes feasible, at least for users with high speed access. The MPAA claims that 650 MB Divx files started appearing on the Internet shortly after DeCSS was posted. Suppose the MPAA had been able to exhibit a copyrighted move in Divx format that it had downloaded from one of these sites after DeCSS was posted and was able to further prove that DeCSS was used to decrypt the data that was then Divx compressed. Then I think there would be a strong case that the plaintiffs had actually been damaged by DeCSS. The MPAA has two problems. First it has not shown that DeCSS was used. That is where the shotgun case comes in. The Judge is saying that case (Summers v. Tyce) suggests plaintiffs don't have to prove that DeCSS was used to decrypt the files, rather the defense has to prove it wasn't. The second problem is that plaintiffs have not exhibited even one of the allegedly posted Divx files. It only attempted to show that some Internet sites **claim** to have Divx movie files available. The Judge questioned whether that constituted sufficient proof. (The defense says it is hearsay.) As the Judge put it [July 20 p. 665 line 6]: "And the way those kinds of issues are usually handled in a trademark case is that the investigator comes in and says that I went to the store on Fordham Road and I bought these six pairs of counterfeit jeans and here they are, and a witness shows up from Levis and says we didn't make them, they're counterfeit." The judge later suggested some arguments the plaintiffs might use to save their hides on this point [see p. 666 l. 18], but if I were the defense, I would use the shotgun argument to say "Look, if the burden of proof is on us, you must require the plaintiffs to have produced the actual files at discovery. Then we should have been given enough time to show that the files in evidence were not decoded by DeCSS, either by applying forensic tests or by tracing them to the source. Plaintiffs haven't done that, so there is no proof of any damage" The bad news it that the MPAA will know what to do next time. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:16:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18752 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:16:40 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18749 for ; Mon, 24 Jul 2000 19:16:39 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id QAA04502 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:26:55 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy Date: Mon, 24 Jul 2000 16:23:59 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0007241626540J.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, 24 Jul 2000, you wrote: > dried case isn't and now has to deal with some judicial issues. Appelate > court judges REALLY take a dim view of cases if this kind and may look for > ANY reason to overrule. [Remember the Tennessee Supreme Court overruled the > Scopes verdict because the Judge set the sentence and not the Jury] Cases of what kind? What specifically would cause an appelate to get angry like that? --James (Russell) > -- > Jim Miller - rmiller@duskglow.com - russell@know-where.com > ----------------------------------------------------------------------- > The following sites are my own and do not necessarily represent > the views of any of my clients. > > http://www.duskglow.com > http://www.singlegeek.com > http://www.whathaveyoudone.org -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:21:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18810 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:21:00 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18807 for ; Mon, 24 Jul 2000 19:20:58 -0400 Received: by aero.org id <17138-1>; Mon, 24 Jul 2000 16:20:08 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGDCa11663; Mon Jul 24 16:16:24 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:16:04 -0700 Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 5 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 04:16:03 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 16:16:30 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes....also...the idea that thousands of people would be sending video files around the world without choking any network is ludicrous.[remember TCP does flow control by dumping packets]. The throughput depends not only upon the speed of the physical layer but the network activity and the time delay between users. I know some people have looked at campus level transmissions but what about world wide? "Arnold G. Reinhold" @eon.law.harvard.edu on 07/24/2000 04:06:51 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 5 At 12:53 AM -0500 7/24/2000, Chris Moseng wrote: >"Arnold G. Reinhold" wrote: > > Next Prof. Larry Peterson testified as an expert on networks. ... > >Someone might want to remind the defense that there is a significant >difference between aggregate internet bandwidth and an individual's >bandwidth to their ISP. At least from this retelling, it sounds as if >they were testifying about internet bandwidth as a whole, but ignoring >the fact that the internet could operate at the speed of light, but it >would not speed my 56k modem one iota. And 56k modems is whats people's >gots. > Prof. Peterson was testifying mostly about backbone capacity, not the "last mile." At 5:21 AM -0400 7/24/2000, Eric Eldred wrote: >On Sun, Jul 23, 2000 at 11:38:42PM -0400, Arnold G. Reinhold wrote: >> A Visit to the Twelfth Dimension >> >> By Arnold Reinhold >>[...] >> The next day the Judge started by telegraphing his opinion on a line >> of testimony from Thursday. The defense, during Ms. Rider's cross, >> had tried to show that there were other technologies (e.g. DOD [Drink >> or Die] Ripper) that could have been used to produce the pirated >> material that she claims is now on the net. The Judge compared the >> argument with a classic law school case where two people fire a >> shotgun and only one shot hits a victim. Kaplan says it is each >> shooter's burden of proof to show that his shotgun was not the one >> that hit the victim. > >But the witness also said--and this bears repeating--that there >is no evidence at all that DeCSS is used in this process, and >the plaintiffs had to stipulate that point. There is no sense >in the judge's joke about two people firing a shotgun, unless >you can prove that two shotguns were actually fired instead of >one. With shotguns that could be proved with forensic exams; >why can't the studios prove it, given the money they pay to their >investigators? Kaplan wasn't making a joke, he was indicating his view of the law. Several programs could have been employed to produce the DivX movie files allegedly posted to the Internet. DeCSS is one of them. He is saying that MPAA doesn't have to prove that DeCSS was used, the defense has to prove it wasn't. > >> The judge was very interested in the notion that there were two kinds >> of links: those that went directly to the DeCSS program and >> downloaded it and those that went to a web site where DeCSS was >> offered. He specifically asked about "deep linking." I infer that he >> is thinking he might bar the former kind of link but not the latter. >> To me this is like saying you can reference a book but not give a >> page number. > >Take a look at Carl Kaplan's NYT column and see where he links at >the bottom. Do you think it is any different from 2600? My interpretation of the Judges comments is that he is trying to construct a class of links he can ban. If he does, it will affect the New York Times, at least its online edition, as well. Will that stand on appeal? I'd bet it wouldn't, but not a lot of money. > >> Next Prof. Larry Peterson testified as an expert on networks. The >> thrust of his testimony was that the Internet would take a long time >> to grow enough bandwidth to support large amounts of 650MB files >> being downloaded. The Judge took over the questioning at one point >> to get the witness to say the net has finite capacity now, lots of >> 650MB files would strain the net but that capacity could be added. >> The defense then tried to establish that a 100 fold increase in >> bandwidth would be needed and that it took the net 10 years for the >> last 100 fold increase. I didn't find the argument very strong. The >> Judge was obviously not impressed. > >I have a cable modem. Many cable modems will now be part of >the AOL/Netscape/Time-Warner empire. Do you imagine that such >a network would not be able to find a way to identify downloads >of network-hogging video files and either cut them off or cut off >the customers who do it? If my cable service provider prevented me from downloading a 650MB file, say the latest Linux distribution, I'd be pretty annoyed. No ISP bats an eyelash if someone with a dial-up connection downloads a 20MB file. Why should they object if someone on a cable connection, which is 50x faster, downloads a 1 GB file every now and then? > >> Finally Prof. Peter Ravich (sp?) testified as an expert on video >> compression. The first part of his testimony was a very clear example >> of how helpful DeCSS would be to his research. His group writes >> software to index video and DVD are an unsurpassed source of good >> video once they are decrypted. His is a very narrow case but it was >> well made. >> >> He then went on to explain why compressing DVDs down to fit in a 650 >> MB file would produce results that the "average person would say >> stinks." He cited his experiments on the movie Contact. Judge Kaplan >> was clearly skeptical and indicated that he would watch the DivX >> sample provided by MPAA and form his own opinion. (Contact may be a >> poor example since it is so long. www.imdb.com says the US version is >> 153 minutes). The Judge also asked about Fractile compression and >> the "Genuine Fractile" product and seemed miffed that the witness >> hadn't heard of it. > >What is the relevance of fractal compression? The studios claim >that DeCSS allows "bit-for-bit" copying. But they have not shown >that here. The only way DVD copies could practically be distributed >is with lossy compression. Some DVD players apparently allow one >to send to videotape the output. Decryption is only one of many >ways to "pirate" a DVD. The question at that point in the trial was whether there was likely to be any breakthroughs in compression technology. The witness said he expected only incremental improvements. The judge then asked about Genuine Fractile. On the broader issue, I think the MPAA is also saying that by allowing lossy compression to a size where Internet file exchange starts to be feasible DeCSS is a circumventing technology. I don't agree but I suspect the Judge will. > >> I must say I have a much higher opinion of Judge Kaplan after >> attending the trial. He is very sharp and does not tolerate >> sloppiness on either side. He is taking this case very seriously and >> seems to be trying to grasp the issues, even at the technical level. >> He seems to "get it." > >I think he should be a better listener. He is too sharp. He seems >to have preconceptions and then interrupt to determine whether or >not his preconceptions are true--if they are, he is pleased with >himself. But he risks cutting off testimony that would either be >important for the plaintiffs to prove, because he assumes in his >mind they have proved it, or testimony for the defense, which may >be important for appeal. The impression I got was that he is actually quite a good listener. He generally allows a line of questioning to continue until he sees where it is going. If he is already convinced or thinks the question is irrelevant (for example whether Mr. Corley made any money off of posting DeCSS) he cuts it off. Remember he is both judge and jury in this case. If he feels one party has proved a point, it's is proved. He has to give the other party a chance to rebut, of course, and he seems more patient in that mode. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:37:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18889 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:37:10 -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 TAA18886 for ; Mon, 24 Jul 2000 19:37:09 -0400 Message-ID: <20000724233600.15979.qmail@web514.mail.yahoo.com> Received: from [64.81.25.37] by web514.mail.yahoo.com; Mon, 24 Jul 2000 16:36:00 PDT Date: Mon, 24 Jul 2000 16:36:00 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? 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 --- "Arnold G. Reinhold" wrote: > The MPAA claims that 650 MB Divx files started appearing on the > Internet shortly after DeCSS was posted. Could this be a result of the fact that DivX was invented "shortly after DeCSS was posted" perhaps. This could be so, even if there is no connection to DeCSS. If you can get a DivX of a movie that isn't even on DVD, like X-Men, then what difference does DeCSS make? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:50:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20289 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:50:57 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20286 for ; Mon, 24 Jul 2000 19:50:55 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id QAA16631 for ; Mon, 24 Jul 2000 16:50:12 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id QAA32729; Mon, 24 Jul 2000 16:48:15 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? Date: 24 Jul 2000 16:47:08 -0700 Organization: A poorly-installed InterNetNews site Lines: 11 Distribution: isaac Message-ID: <8likhs$vum$1@blowfish.isaac.cs.berkeley.edu> References: <20000724112232.A1311@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Arnold G. Reinhold wrote: > The MPAA claims that 650 MB Divx files started appearing on the > Internet shortly after DeCSS was posted. That may well be true, but please don't get caught in a fallacy: Don't assume that this means that DeCSS played any causal role in the appearance of Divx files! It is not at all a stretch to expect that the timing could be a coincidence; interest in digital video content has been greatly increasing over the past year or two, and so it is not surprising to see some advances occuring at roughly the same time, even if they had nothing to do with each other. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:53:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20424 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:53:22 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20421 for ; Mon, 24 Jul 2000 19:53:21 -0400 Received: by aero.org id <17090-2>; Mon, 24 Jul 2000 16:52:32 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEAAa06039; Mon Jul 24 16:52:21 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 16:51:50 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 04:51:47 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 16:52:23 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Sacco and Vanzetti excluded, appelate courts do not care for cases where ONE person is singled out for procecution when there are others as culpable if not more so. To quote Wm Jennings Bryan "We must make an example of this transgressor". Most judges don't care for statements of that type or for cases where that is the intent of the plaintiffs. The case must be based upon FACTS and cases of that type generally are not. They are based upon fears and prejudices. Any judge worth his salt will be thinking of this and asking if the plaintiff is playing upon fear rather than fact. He may still find for the plaintiff. The appelate court has to look for the facts and if it sees that they aren't there but fears are, they tend to overturn. Not always. Sacco and Vanzetti, it didn't. Look at the Scottboro cases. Those cases kept getting flung back into the lower courts for retrial. [The second judge actually wrote in his opinion that there had been no crime but did not overturn the jury verdict only set it aside.] Jim Miller @eon.law.harvard.edu on 07/24/2000 04:17:02 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy On Mon, 24 Jul 2000, you wrote: > dried case isn't and now has to deal with some judicial issues. Appelate > court judges REALLY take a dim view of cases if this kind and may look for > ANY reason to overrule. [Remember the Tennessee Supreme Court overruled the > Scopes verdict because the Judge set the sentence and not the Jury] Cases of what kind? What specifically would cause an appelate to get angry like that? --James (Russell) > -- > Jim Miller - rmiller@duskglow.com - russell@know-where.com > ----------------------------------------------------------------------- > The following sites are my own and do not necessarily represent > the views of any of my clients. > > http://www.duskglow.com > http://www.singlegeek.com > http://www.whathaveyoudone.org -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 19:59:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20495 for dvd-discuss-outgoing; Mon, 24 Jul 2000 19:59:16 -0400 Received: from csimo02.mx.cs.com (csimo02.mx.cs.com [205.188.156.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20492 for ; Mon, 24 Jul 2000 19:59:16 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.57.8dff5d4 (4369) for ; Mon, 24 Jul 2000 19:58:04 -0400 (EDT) Message-ID: <57.8dff5d4.26ae320b@cs.com> Date: Mon, 24 Jul 2000 19:58:03 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 105 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If someone argued these programs cant be restricted on 2nd Amendment grounds, the analogy would become clearer. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 20:04:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20587 for dvd-discuss-outgoing; Mon, 24 Jul 2000 20:04:47 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20584 for ; Mon, 24 Jul 2000 20:04:46 -0400 Received: by aero.org id <17097-5>; Mon, 24 Jul 2000 17:04:06 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCAAa06968; Mon Jul 24 17:04:03 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 17:03:46 -0700 Subject: Re: [dvd-discuss] "Computers for Lawyers" To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 05:03:44 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 17:04:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I don't know about anybody else but I'm getting tired of hearing lawyers talk about object code as if understanding it were some sort of litmus test between "normal people" and the subhuman geeks intent on wrecking destruction upon cyberspace and the world as we know it today.....these people could really benefit from a computers 101 course. I know there are "computers for dummies" books out there....maybe the "community" needs to create a "computers for lawyers" book as well. [as for any lawyers reading this....you can supply the questions and outline]...I don't know about anyone else, but I'm a bit disturbed that things that have been second nature to me for over 22 yrs (e.g., compilers, assembly language, object code) are so completely misunderstood by the courts and legal profession. Yet these people have GOT to get some understanding of it because of the sheer numbers of computers that are in use today...off the soapbox From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 20:12:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20714 for dvd-discuss-outgoing; Mon, 24 Jul 2000 20:12:47 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20711 for ; Mon, 24 Jul 2000 20:12:46 -0400 Received: by aero.org id <17089-7>; Mon, 24 Jul 2000 17:12:02 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEAAa07268; Mon Jul 24 17:11:51 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 17:11:29 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/24/2000 05:11:28 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Mon, 24 Jul 2000 17:11:58 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can almost see Charlton Heston striding into the courtroom..... Consilgere@cs.com@eon.law.harvard.edu on 07/24/2000 04:59:39 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy If someone argued these programs cant be restricted on 2nd Amendment grounds, the analogy would become clearer. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 20:13:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20755 for dvd-discuss-outgoing; Mon, 24 Jul 2000 20:13:58 -0400 Received: from dial169.roadrunner.com (dial169.cybermesa.com [209.12.75.169] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20752 for ; Mon, 24 Jul 2000 20:13:54 -0400 Received: (from paul@localhost) by dial169.roadrunner.com (8.8.7/8.8.7) id SAA03742 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 18:14:17 -0600 Date: Mon, 24 Jul 2000 18:14:16 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? Message-ID: <20000724181415.C3017@localhost> References: <20000724112232.A1311@localhost> 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 Mon, Jul 24, 2000 at 06:55:52PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 06:55:52PM -0400, Arnold G. Reinhold wrote: > At 11:22 AM -0600 7/24/2000, Paul Fenimore wrote: > >page 818: > > > > 14 Just by way of a parenthetical digression, I am well > > 15 aware that the issue of the extent to which there is > > 16 sufficient proof that there are in fact decrypted movies > > 17 available over the Internet has not been decided and we are > > 18 going to have further discussion about that. My question > > 19 presupposes, just on a hypothetical basis, if there is > > 20 adequate proof to find that there are such movies out there. > > > >Kaplan is under the delusion that distributing a scrambled or > >encrypted movie over the internet is copy control. This is wrong. > >Descrambling comes either before or after copying. By the requirement > >that a cause must preceed an effect, descrambling cannot be > >controlling copying. Scrambling controls use as in performance > >of the plaintext, not copying. > > I think the argument here is that by allowing access to plaintext, > DeCSS permits the compression that is necessary to produce a 650MB > movie file, which is arguably a size were Internet posting becomes > feasible, at least for users with high speed access. You're talking about derivative works. Fine. It is a valid objection to say that I can't simply discuss copies without addressing the making of derivatives. Addressing the additional point requires somewhat more subtlety than my initial point about copies, but the P's case still holds no water. [ There is however a common thread: the conflation of access control in 1201(a) with rights control 1201(b), which I think is a horrible mistake on the court's part. The discussion here serves more to demonstrate the nutty situation that arises from taking 1201(a) and (b) to be restatements of each other rather than this argument being solely a defense to a valid lawsuit by the P's. I think these arguments can function as both, but conceeding that the P's lawsuit is even within the scope of 1201(a) will lose the war, even if the battle is won. ] The question in the law is if something circumvents by allowing descrambling without authority (I'm leaving aside the issue of whether CSS controls access for the moment). The issue of getting the descrambled MPEG files so they can be recompressed with some loss of perceptual quality doesn't depend one whit on the circumvention --- it depends slightly on bypassing the player limitations imposed by the DVD-CCA contract, either by building your own player or by writing DOD Speed ripper, a program which does no circumvention under section 1201(a). The whole bit about MPEG-4 isn't about copies so much as it is about derivative works. Furthermore, pushing the play button on a DVD-CCA licensed player allows one to make a DivX/MPEG-4 encoded derivative work. The play button is an O(1) "attack" on all CSS-like stored-data scrambling systems. I'm not saying Kaplan's shotgun stuff is misguided, I'm saying its irrelevant! The example of DOD is most useful not because it shows that that there are other ways to achieve the end of distributing a work, but that making copies *or* derivative works has no dependence on circumvention! Remember circumvention is descrambling _and_ lack of authority. The case for copies without derivative status is less involved -- not only circumvention but also descrambling is irrelevant. > The MPAA claims that 650 MB Divx files started appearing on the > Internet shortly after DeCSS was posted. Suppose the MPAA had been > able to exhibit a copyrighted move in Divx format that it had > downloaded from one of these sites after DeCSS was posted and was > able to further prove that DeCSS was used to decrypt the data that > was then Divx compressed. Then I think there would be a strong case > that the plaintiffs had actually been damaged by DeCSS. The MPAA has > two problems. First it has not shown that DeCSS was used. That is > where the shotgun case comes in. The Judge is saying that case > (Summers v. Tyce) suggests plaintiffs don't have to prove that DeCSS > was used to decrypt the files, rather the defense has to prove it > wasn't. > > The second problem is that plaintiffs have not exhibited even one of > the allegedly posted Divx files. It only attempted to show that some > Internet sites **claim** to have Divx movie files available. The > Judge questioned whether that constituted sufficient proof. (The > defense says it is hearsay.) As the Judge put it [July 20 p. 665 line > 6]: "And the way those kinds of issues are usually handled in a > trademark case is that the investigator comes in and says that I went > to the store on Fordham Road and I bought these six pairs of > counterfeit jeans and here they are, and a witness shows up from > Levis and says we didn't make them, they're counterfeit." > > The judge later suggested some arguments the plaintiffs might use to > save their hides on this point [see p. 666 l. 18], but if I were the > defense, I would use the shotgun argument to say "Look, if the burden > of proof is on us, you must require the plaintiffs to have produced > the actual files at discovery. Then we should have been given enough > time to show that the files in evidence were not decoded by DeCSS, > either by applying forensic tests or by tracing them to the source. > Plaintiffs haven't done that, so there is no proof of any damage" > > The bad news it that the MPAA will know what to do next time. The *really* bad news would be if at the end of this mess we're left with a statute where "access" is taken to be generating the plaintext from ciphertext instead of the commercial transaction to acquire the work. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 20:36:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21627 for dvd-discuss-outgoing; Mon, 24 Jul 2000 20:36:12 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA21624 for ; Mon, 24 Jul 2000 20:36:11 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.73.560f661 (4369) for ; Mon, 24 Jul 2000 20:35:24 -0400 (EDT) Message-ID: <73.560f661.26ae3aca@cs.com> Date: Mon, 24 Jul 2000 20:35:22 EDT Subject: Re: [dvd-discuss] "Computers for Lawyers" To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 105 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is why us computer people have to "infiltrate" government. More of us need to run for office, make cyber-liberty issues known, and the like. Lobbying isn't enough anymore. I know we'd all like to think we can exist without the government breathing down are necks, but if you can't beat em... From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 20:47:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21912 for dvd-discuss-outgoing; Mon, 24 Jul 2000 20:47:01 -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 UAA21909 for ; Mon, 24 Jul 2000 20:47:00 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id UAA26070; Mon, 24 Jul 2000 20:46:22 -0400 Date: Mon, 24 Jul 2000 20:46:22 -0400 From: Jim Bauer Message-Id: <200007250046.UAA26070@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Newsgroups: local.dvd-discuss In-Reply-To: <20000724092425.A545@localhost> References: <20000724044349.B10510@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: >On Mon, Jul 24, 2000 at 04:43:49AM -0400, Eric Eldred wrote: >> On Sun, Jul 23, 2000 at 07:36:48PM -0400, Ron Gustavson wrote: >> > On Sat, 22 Jul 2000 13:08:04 -0700, Jim Taylor wrote: >> > >> > >I keep seeing people say that it's Hollywood's fault for not improving the >> > >system for the last three years. Doesn't this seem like an unreasonable >> > >expectation? CSS had already caused plenty of problems (delayed players, >> > >delayed drives, added expense). Was Hollywood supposed to make players >> > >obsolete every 6 months with new versions of CSS? Or should they make 11 >> > >million players obsolete now that CSS has been hacked? >> >> It's really DVD-CCA's fault. Insteading of realizing their >> mistakes, they did what failing organizations do. They >> called out the lawyers, circled around the flag, denied >> everything, flew back from the golf course in their >> corporate jets, and tried to shoot the messengers. >> >> Yes, in the beginning they should have been smarter about >> security. They should have gone open source and got peer > ^^^^^^^^^^^ >> review. They should have used a longer key and gone to >> the government to get permission to export. They should >> not have made software players. There are a whole lot of >> things they now no doubt realize they should have done. > >What function would CSS serve if the algorithm is public? The >key-"management" would have to change, because the current >function of CSS is not to "protect" a copyrighted work. The >function is to be a secret that requires one to sign an NDA >to build useful DVD players. > >None of the "copy protection" features depends on the crypto >directly. Instead those features depend on the license one signs to get >the "secret" CSS algorithm without being sued. > >Once the key-management is changed and the algorithm is public, the >current use of CSS on stored-data would be pointless. Anyone who bought >a disk, would also get a key too. The only use for 1201(a) that I can come >up with that half-way makes sense is that it allows "copy-less" distribution >of works. Well what they *should* have down was just not use CSS or anything remotely like it. I am sure (but I have no evidence) that they have expended lots more money designing, implementing, and licensing CSS and legal fees related to it then that have or probably ever will loose to priacy. [I am excluding the bit-for-bit priated copies that CSS dosn't even pretend to protect against.] But as been said many times here, this case isn't about priacy, it is about control. From my point of view, the motion picture industry seem to be a bunch of control freaks. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 21:07:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23252 for dvd-discuss-outgoing; Mon, 24 Jul 2000 21:07:18 -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 VAA23249 for ; Mon, 24 Jul 2000 21:07:16 -0400 Received: from tim (helo=localhost) by draco.tneu.visi.com with local-esmtp (Exim 3.12 #1 (Debian)) id 13Gt0t-000474-00 for ; Mon, 24 Jul 2000 19:56:03 -0500 Date: Mon, 24 Jul 2000 19:56:03 -0500 (CDT) From: Tim Neu To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DivX quality 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 Somewhere down the line, it would be nice to ask the MPAA to demonstrate the following from a DivX 1. Please access the "Making of..." section of a particular DVD (DivX would generally only contain the movie, it would not have menus / add-ons 2. Please demonstrate DivX Surround Sound... (DivX would not have surround sound but would only have [at best] stereo sound) 3. Please tell the court how many frames per second were removed in order to make this DivX. 4. Please show the court how to select alternative camera angles from a DivX file. (Some DVDs would have multiple camera angles available for a given scene) I think it is important not to let the "perfect digital copies" argument fly, when they talk about DivX. DivX does not compare to DVD, period. That would level the playing ground somewhat, because now we're talking apples and apples again. Now, DivX is just another medium. When we're talking severely degraded quality, DivX becomes no different than a typical home VCR. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ______ _ __ "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 / <_/ / / < / (_; Mon, 24 Jul 2000 21:12:01 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA18B2 for ; Mon, 24 Jul 2000 21:11:22 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id VAA02579 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 21:10:37 -0400 Date: Mon, 24 Jul 2000 21:10:37 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "Computers for Lawyers" Message-ID: <20000724211037.G1098@agape.murphy.cx> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Mon, Jul 24, 2000 at 05:04:04PM -0700, > These > people could really benefit from a computers 101 course. I know there are > "computers for dummies" books out there. That's why Kaplan is pushing the lawyers to agree on some definitions of which he can take judicial notice. See the Friday transcript. -- Roy Murphy \ CSpice -- A mailing list for Clergy Spouses murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 21:19:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25810 for dvd-discuss-outgoing; Mon, 24 Jul 2000 21:19:18 -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 VAA25807 for ; Mon, 24 Jul 2000 21:19:17 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id VAA26240; Mon, 24 Jul 2000 21:18:38 -0400 Date: Mon, 24 Jul 2000 21:18:38 -0400 From: Jim Bauer Message-Id: <200007250118.VAA26240@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael.A.Rolenz@aero.org wrote: > >Another argument against shortening the time is that if it does become >obsolete by the time the patent has expired, then something has made it >obsolete. To be replaced by something else that is patented. Also nowadays, big companies get together and cross licenses their patents so they can work together to elminate the small guys. Somehow I don't think the founding fathers had that in mind. >One ironic twist on the Sonny Bono Extension Law is that in many states >one must exercise one's property rights at least once a year or one can >loose REAL property but intellectual property can be kept well beyond a >lifetime without doing anything. Isn't it imperative for works patented or copyrighten to go into public domain *before* they outlived they usefullness? Otherwise, what's the point? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 21:29:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA26514 for dvd-discuss-outgoing; Mon, 24 Jul 2000 21:29:52 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA26511 for ; Mon, 24 Jul 2000 21:29:51 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QCH9>; Mon, 24 Jul 2000 21:34:11 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E8C@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Mon, 24 Jul 2000 21:34:10 -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 philosophical note, after a point longer copyrights fail to promote the useful arts, because artists will create one thing and stop. Wait until the feds decide to tax IP the way local governments tax physical land. I wonder how much of the federal budget could be paid on 20 cents per thousand dollars. -----Original Message----- From: Jim Bauer [mailto:jfbauer@home.com] Sent: Monday, July 24, 2000 9:19 PM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Michael.A.Rolenz@aero.org wrote: >One ironic twist on the Sonny Bono Extension Law is that in many states >one must exercise one's property rights at least once a year or one can >loose REAL property but intellectual property can be kept well beyond a >lifetime without doing anything. Isn't it imperative for works patented or copyrighten to go into public domain *before* they outlived they usefullness? Otherwise, what's the point? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 21:44:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA27170 for dvd-discuss-outgoing; Mon, 24 Jul 2000 21:44:34 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA27138 for ; Mon, 24 Jul 2000 21:44:32 -0400 Received: from ppp.anonymizer.com (c2T2-016.015.popsite.net [216.126.185.16]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id SAA00837 for ; Mon, 24 Jul 2000 18:46:02 -0700 (PDT) Message-Id: <4.3.2.7.2.20000724184147.00aa7a90@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 24 Jul 2000 18:44:58 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Shotguns and Summers Days Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id VAA27153 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu For those who may care, this is the Summers case which Kaplan mentioned on Friday. 33 Cal.2d 80 199P.2d1, 5A.L.R.2d91 (Cite as: 33 Cal.2d 80) CHARLES A. SUMMERS, Respondent, v. HAROLD W. TICE et al., Appellants. L. A. Nos. 20650, 20651. Supreme Court of California, In Bank. Nov. 17, 1948. HEADNOTES (1) Weapons § 3Civil LiabilityNegligenceEvidence. In an action for personal injuries arising out of a hunting accident, a finding that defendants were negligent was sustained by evidence that they, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. See 26 Cal.Jur. 580; 56 Am.Jur. 1008. *81 (2) Weapons § 3Civil LiabilityContributory NegligenceAssumption of Risk. Hunters on a hunting party do not, as a matter of law, assume the risk of negligence on the part of their companions. (3) Weapons § 3Civil LiabilityContributory NegligenceEvidence. In an action for personal injuries arising out of a hunting accident, although plaintiff, one of the hunters, suggested that they all "stay in line" while hunting, and he went uphill at somewhat of a right angle to the hunting line, the evidence sustained a finding that he did not assume the risk of negligence on the part of his companions or act other than as a person of ordinary prudence under the circumstances, where he also cautioned defendants to use care and they knew his position. (4) Weapons § 3Civil LiabilityNegligenceJoint Liability. In an action for personal injuries arising out of a hunting accident, the court sufficiently found on the issue that defendants were jointly liable and that the negligence of both was the cause of the injury, where it found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused by and did lodge in plaintiff's upper lip." (5) Weapons § 3Civil LiabilityNegligenceJoint Liability. Where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. (6) Weapons § 3Civil LiabilityNegligenceBurden of Proof. Where two hunters are negligent in firing in the direction of a third hunter who is injured thereby, but who is unable to establish which of the other two caused the harm, the burden is on each of those so firing to absolve himself if he can. (7) Negligence § 16Proximate CauseIntervening Causes. An intervening cause will not always relieve a defendant of responsibility for his negligence. (Disapproving Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629, 297 P. 614.) See 2 Cal.Jur. 10Yr. Supp. 539; 19 Cal.Jur. 570 572. (8) Weapons § 3Civil LiabilityNegligenceJoint Liability. Where two hunters are negligent in firing in the direction of a third hunter who is injured thereby, both of those so firing may be treated as liable on the same basis as joint tort feasors. (9) Weapons § 3Civil LiabilityNegligencePersons Liable Apportionment. If two hunters are negligent and liable as independent *82 tort feasors for firing in the direction of a third hunter who is injured thereby, the innocent wronged hunter should not be deprived of his right to redress where the matter of apportionment of damages is incapable of proof. The wrongdoers should be left to work out between themselves any apportionment. (10) Appeal and Error § 973ReviewTheory of Case. In an action for personal injuries arising out of a hunting accident, where the joint liability and the lack of knowledge as to which defendant was liable were pleaded and the proof developed the case under either theory, plaintiff did not, on appeal, change the theory of his case in claiming a concert of action. SUMMARY APPEALS from a judgment of the Superior Court of Los Angeles County. John A. Holland, Judge pro tem. Affirmed. Action for damages for personal injuries arising out of a hunting accident. Judgment for plaintiff affirmed. COUNSEL Gale & Purciel, Joseph D. Taylor and Wm. A. Wittman for Appellants. Werner O. Graf for Respondent. CARTER, J. Each of the two defendants appeals from a judgment against them in an action for personal injuries. Pursuant to stipulation the appeals have been consolidated. Plaintiff's action was against both defendants for an injury to his right eye and face as the result of being struck by bird shot discharged from a shotgun. The case was tried by the court without a jury and the court found that on November 20, 1945, plaintiff and the two defendants were hunting quail on the open range. Each of the defendants was armed with a 12 gauge shotgun loaded with shells containing 7 1/2 size shot. Prior to going hunting plaintiff discussed the hunting procedure with defendants, indicating that they were to exercise care when shooting and to "keep in line." In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of defendants with reference to plaintiff was unobstructed and they knew his location. Defendant Tice flushed a quail which rose in flight to a 10foot elevation and flew between plaintiff and defendants. Both defendants shot at the quail, shooting in plaintiff's direction. At that time defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his upper lip. Finally it was found by the court that as *83 the direct result of the shooting by defendants the shots struck plaintiff as above mentioned and that defendants were negligent in so shooting and plaintiff was not contributorily negligent. (1) First, on the subject of negligence, defendant Simonson contends that the evidence is insufficient to sustain the finding on that score, but he does not point out wherein it is lacking. There is evidence that both defendants, at about the same time or one immediately after the other, shot at a quail and in so doing shot toward plaintiff who was uphill from them, and that they knew his location. That is sufficient from which the trial court could conclude that they acted with respect to plaintiff other than as persons of ordinary prudence. The issue was one of fact for the trial court. (See, Rudd v. Byrnes, 156 Cal. 636 [105 P. 957, 20 Ann.Cas. 124, 26 L.R.A.N.S. 134].) Defendant Tice states in his opening brief, "we have decided not to argue the insufficiency of negligence on the part of defendant Tice." It is true he states in his answer to plaintiff's petition for a hearing in this court that he did not concede this point but he does not argue it. Nothing more need be said on the subject. (2) Defendant Simonson urges that plaintiff was guilty of contributory negligence and assumed the risk as a matter of law. He cites no authority for the proposition that by going on a hunting party the various hunters assume the risk of negligence on the part of their companions. Such a tenet is not reasonable. (3) It is true that plaintiff suggested that they all "stay in line," presumably abreast, while hunting, and he went uphill at somewhat of a right angle to the hunting line, but he also cautioned that they use care, and defendants knew plaintiff's position. We hold, therefore, that the trial court was justified in finding that he did not assume the risk or act other than as a person of ordinary prudence under the circumstances. (See, Anthony v. Hobbie, 25 Cal.2d 814, 818 [155 P.2d 826]; Rudd v. Byrnes, supra.) None of the cases cited by Simonson are in point. The problem presented in this case is whether the judgment against both defendants may stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally liable, as they were not acting in concert, and that there is not sufficient evidence to show which defendant was guilty of the negligence which caused the injuriesthe shooting by Tice or that by Simonson. Tice argues that there is *84 evidence to show that the shot which struck plaintiff came from Simonson's gun because of admissions allegedly made by him to third persons and no evidence that they came from his gun. Further in connection with the latter contention, the court failed to find on plaintiff's allegation in his complaint that he did not know which one was at faultdid not find which defendant was guilty of the negligence which caused the injuries to plaintiff. (4) Considering the last argument first, we believe it is clear that the court sufficiently found on the issue that defendants were jointly liable and that thus the negligence of both was the cause of the injury or to that legal effect. It found that both defendants were negligent and "That as a direct and proximate result of the shots fired by defendants, and each of them, a birdshot pellet was caused to and did lodge in plaintiff's right eye and that another birdshot pellet was caused to and did lodge in plaintiff's upper lip." In so doing the court evidently did not give credence to the admissions of Simonson to third persons that he fired the shots, which it was justified in doing. It thus determined that the negligence of both defendants was the legal cause of the injuryor that both were responsible. Implicit in such finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one shot from each of them. The one shot that entered plaintiff's eye was the major factor in assessing damages and that shot could not have come from the gun of both defendants. It was from one or the other only. (5) It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. (Moore v. Foster, 182 Miss. 15 [180 So. 73]; Oliver v. Miles, 144 Miss. 852 [110 So. 666; 50 A.L.R. 357]; Reyher v. Mayne, 90 Colo. 586 [10 P.2d 1109]; Benson v. Ross, 143 Mich. 452 [106 N.W. 1120, 114 Am.St.Rep. 675].) The same rule has been applied in criminal cases (State v. Newberg, 129 Ore. 564 [278 P. 568, 63 A.L.R. 1225]), and both drivers have been held liable for the negligence of one where they engaged in a racing contest causing an injury to a third person (Saisa v. Lilja, 76 F.2d 380). These cases speak of the action of defendants as being in concert as the ground *85 of decision, yet it would seem they are straining that concept and the more reasonable basis appears in Oliver v. Miles, supra. There two persons were hunting together. Both shot at some partridges and in so doing shot across the highway injuring plaintiff who was travelling on it. The court stated they were acting in concert and thus both were liable. The court then stated: "We think that ... each is liable for the resulting injury to the boy, although no one can say definitely who actually shot him. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence." [Emphasis added.] (P. 668 [110 So.].) It is said in the Restatement: "For harm resulting to a third person from the tortious conduct of another, a person is liable if he ... (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person." (Rest., Torts, § 876(b) (c).) Under subsection (b) the example is given: "A and B are members of a hunting party. Each of them in the presence of the other shoots across a public road at an animal, this being negligent as to persons on the road. A hits the animal. B's bullet strikes C, a traveler on the road. A is liable to C." (Rest., Torts, § 876 (b), com., illus. 3.) An illustration given under subsection (c) is the same as above except the factor of both defendants shooting is missing and joint liability is not imposed. It is further said that: "If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be held by the jury to be a substantial factor in bringing it about." (Rest., Torts, § 432.) Dean Wigmore has this to say: "When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. (b) ... The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how *86 much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. ..." (Wigmore, Select Cases on the Law of Torts, § 153.) Similarly Professor Carpenter has said: "[Suppose] the case where A and B independently shoot at C and but one bullet touches C's body. In such case, such proof as is ordinarily required that either A or B shot C, of course fails. It is suggested that there should be a relaxation of the proof required of the plaintiff ... where the injury occurs as the result of one where more than one independent force is operating, and it is impossible to determine that the force set in operation by defendant did not in fact constitute a cause of the damage, and where it may have caused the damage, but the plaintiff is unable to establish that it was a cause." (20 Cal.L.Rev. 406.) (6) When we consider the relative position of the parties and the results that would flow if plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be shifted to defendants becomes manifest. They are both wrongdoersboth negligent toward plaintiff. They brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can. The injured party has been placed by defendants in the unfair position of pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. This reasoning has recently found favor in this court. In a quite analogous situation this court held that a patient injured while unconscious on an operating table in a hospital could hold all or any of the persons who had any connection with the operation even though he could not select the particular acts by the particular person which led to his disability. (Ybarra v. Spangard, 25 Cal.2d 486 [154 P.2d 687, 162 A.L.R. 1258].) There the court was considering whether the patient could avail himself of res ipsa loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff has made out a case when he has produced evidence which gives rise to an inference of negligence which was the proximate cause of the injury. It is up to *87 defendants to explain the cause of the injury. It was there said: "If the doctrine is to continue to serve a useful purpose, we should not forget that 'the particular force and justice of the rule, regarded as a presumption throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.' " (P. 490.) Similarly in the instant case plaintiff is not able to establish which of defendants caused his injury. The foregoing discussion disposes of the authorities cited by defendants such as Kraft v. Smith, 24 Cal.2d 124 [148 P.2d 23], and Hernandez v. Southern California Gas Co., 213 Cal. 384 [2 P.2d 360], stating the general rule that one defendant is not liable for the independent tort of the other defendant, or that ordinarily the plaintiff must show a causal connection between the negligence and the injury. There was an entire lack of such connection in the Hernandez case and there were not several negligent defendants, one of whom must have caused the injury. (7) Defendants rely upon Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved. (See, Mosley v. Arden Farms Co., 26 Cal. 2d 213 [157 P.2d 372, 158 A.L.R. 872]; Sawyer v. Southern California Gas Co., 206 Cal. 366 [274 P. 544]; 2 Cal.Jur. 10Yr. Supp. Automobiles, § 349; 19 Cal.Jur. 570572.) (8) Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; *88 City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].) In view of the foregoing discussion it is apparent that defendants in cases like the present one may be treated as liable on the same basis as joint tort feasors, and hence the lastcited cases are distinguishable inasmuch as they involve independent tort feasors. (9) In addition to that, however, it should be pointed out that the same reasons of policy and justice shift the burden to each of defendants to absolve himself if he canrelieving the wronged person of the duty of apportioning the injury to a particular defendant, apply here where we are concerned with whether plaintiff is required to supply evidence for the apportionment of damages. If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.) (10) It is urged that plaintiff now has changed the theory of his case in claiming a concert of action; that he did not plead or prove such concert. From what has been said it is clear that there has been no change in theory. The joint liability, as well as the lack of knowledge as to which defendant was liable, was pleaded and the proof developed the case under either theory. We have seen that for the reasons of policy discussed herein, the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently. The judgment is affirmed. Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred. Appellant Tice's petition for a rehearing was denied December 16, 1948. *89 Cal.,1948. Summers v. Tice END OF DOCUMENT From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:25:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28728 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:25:03 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA28716 for ; Mon, 24 Jul 2000 22:24:51 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11253 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 22:27:24 -0400 Date: Mon, 24 Jul 2000 22:27:19 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724222719.G10510@eldritchpress.org> References: <20000724044349.B10510@eldritchpress.org> <20000724092425.A545@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000724092425.A545@localhost>; from fenimore@roadrunner.com on Mon, Jul 24, 2000 at 09:24:26AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 09:24:26AM -0600, Paul Fenimore wrote: > > What function would CSS serve if the algorithm is public? The > key-"management" would have to change, because the current > function of CSS is not to "protect" a copyrighted work. The > function is to be a secret that requires one to sign an NDA > to build useful DVD players. > > None of the "copy protection" features depends on the crypto > directly. Instead those features depend on the license one signs to get > the "secret" CSS algorithm without being sued. > > Once the key-management is changed and the algorithm is public, the > current use of CSS on stored-data would be pointless. Anyone who bought > a disk, would also get a key too. The only use for 1201(a) that I can come > up with that half-way makes sense is that it allows "copy-less" distribution > of works. Yes, security through obscurity would never work, so I'm not maintaining that CSS would be improved by open source, but only that if MPAA wished to release some product that was secure, they should allow peer review. We have heard testimony that this peer review is very important to assessing security. Will Bruce Schneier get a chance to testify? What I am really saying, though, is that it is not really a technical problem. It is an organization problem. Their mistakes were not technical, they were organizational. There is no way they can fix them without shaking up their organization. It was good to read testimony Friday about how open source code development works, in contrast. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:35:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29293 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:35:08 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29289 for ; Mon, 24 Jul 2000 22:34:57 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11277 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 22:37:30 -0400 Date: Mon, 24 Jul 2000 22:37:25 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? Message-ID: <20000724223725.H10510@eldritchpress.org> References: <20000724112232.A1311@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000724112232.A1311@localhost>; from fenimore@roadrunner.com on Mon, Jul 24, 2000 at 11:22:32AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 11:22:32AM -0600, Paul Fenimore wrote: >[...] > This is where the "shotguns" come from. The problem is that DOD and > DeCSS are radically different programs. DeCSS descrambles and copies. > DOD only copies. DeCSS is on trial for descrambling, at least as > far as this being a 1201(a) suit goes, but the judge keeps looking > at the copying. Even though every DVD descrambler has to make a copy > in the normal course of its operation. Yes, this needs to be pointed out as strongly as possible. Descrambling cannot be a crime under DMCA if an ordinary consumer in the possession of a valid DVD has to descramble in order to use the product at all. This must always be authorized by the simple possession of a valid DVD and an authorized DVD player, both of which one must have in order to use DeCSS. Whereas copying and distributing the copy on the Internet (for commercial or private financial gain) is indeed a normal copyright infringement--you don't need DMCA for that. But you don't need DeCSS either (the shotgun was never fired, your honor). So what this case boils down to is using an UNAUTHORIZED (from DVD-CCA) descrambler in order to play the valid DVD on a Linux box. (Hence the antitrust questions.) If Kaplan insists on his thinking, then there are grounds for prejudice and overruling on appeal. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29405 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:38:22 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29402 for ; Mon, 24 Jul 2000 22:38:11 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11286; Mon, 24 Jul 2000 22:40:29 -0400 Date: Mon, 24 Jul 2000 22:40:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: Danny Silverman Subject: Re: [dvd-discuss] illegal ideas Message-ID: <20000724224024.I10510@eldritchpress.org> References: <14716.31577.534066.481996@vortex.ukshells.co.uk> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <14716.31577.534066.481996@vortex.ukshells.co.uk>; from c.ebenezer@iee.org on Mon, Jul 24, 2000 at 06:22:33PM +0100 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 06:22:33PM +0100, Chris Ebenezer wrote: >[...] > Danny Silverman writes: > > > I think the whole thing is an attempt to create a trust in > > > such a way that they can get around Betamax and the Home recording > > > act. > > > > I agree. The MPAA honestly thinks what they are saying - that DeCSS > > will ruin them. It is exactly what they thought in the Betamax case. > > They don't give a rat's ass about 2600, it seems they are genuinely > > scared! They ARE > > Well - from their point of view this sort of makes sense. I think you > need to look at where most of these people are coming from. Most of the > media studios are exactly that - they sell all forms of media. > > Now what the introduction of CDs taught them was that there was this > HUGE market for repeat sales to people who already had a recording in > another form. Naturally they wish to preserve this healthy (for them) > state of affairs. > > Ignoring the issues of piracy for the moment. This is why you won't see > the media companies coming up with *ANY* digital format which is easy to > reproduce prefectly (even for the purposes of fair use), because once > they sell one copy of that recording to a user - they can *NEVER* sell > it to that user again. They have chanced on a model that allows them to > sell a single *FORM* of that recording. Naturally they want to preserve > this situation. Heaven forbid that people should actually transfer > around the rights of fair use by being allowed to sell them on. Reading > between the lines of Marsha King's testimony this is certainly the > impression that comes across. It's DIVX all over again. The studios couldn't resist the temptation to go for all-out control and they rely on technology and the law to do that for them. But as Jon Johansen aptly put it, they should instead produce a superior product, that customers want and need, at a fair price. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:52:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29461 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:52:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29458 for ; Mon, 24 Jul 2000 22:51:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11363 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 22:54:33 -0400 Date: Mon, 24 Jul 2000 22:54:28 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. Message-ID: <20000724225427.J10510@eldritchpress.org> References: <20000724144318.A2289@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000724144318.A2289@localhost>; from fenimore@roadrunner.com on Mon, Jul 24, 2000 at 02:43:19PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 02:43:19PM -0600, Paul Fenimore wrote: > I'm still digging out from my 11+ days away. I apologize if this is already > in the record, but it seems to me like a good idea to make sure that > "descrambling can come either before or after copying" is in the evidentiary > record. Kaplan's belief that 1201(a) is "prophylactic" to infringment, and > the P's case, rest on the false assumption that CSS is copy control. Something > which can come before or after an event fails the most basic test of > causality --- a cause must preceed an effect. Descrambling can come after > copying, so by causality, it can't prevent it. > > If "causality" isn't in the record, then a number of avenues will be > weakened or closed in the appeal process. I agree. The trouble seems to be that Kaplan has cut off testimony to that effect, indicating the law is plain and the facts don't matter. So it might be something the defense has to establish in the record for appeal. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:57:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29544 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:57:04 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29541 for ; Mon, 24 Jul 2000 22:56:53 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA11380 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 22:59:26 -0400 Date: Mon, 24 Jul 2000 22:59:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. Message-ID: <20000724225921.K10510@eldritchpress.org> References: <20000724213209.1126.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000724213209.1126.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Jul 24, 2000 at 02:32:09PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 02:32:09PM -0700, Bryan Taylor wrote: > --- Paul Fenimore wrote: > > I'm still digging out from my 11+ days away. I apologize if this is > > already in the record, but it seems to me like a good idea to > > make sure that "descrambling can come either before or after > > copying" is in the evidentiary record. > > I think one of the Princeton Profs testified to it. It's really a > trivial fact. Hopefully this diagram makes it clear: > > R*(D83dE@Cw%eR ---> "Hello World" > | | > | | > V V > R*(D83dE@Cw%eR ---> "Hello World" > > Horizontal: decryption > Vertical : copying (use cut and paste) > > Mathematically, copying produces the identity function among works. The > identity function commutes with anything, so the diagram is commutative > regardless of the actual decryption function. That is, under function > composition for any decryption: > copying o decryption = decryption o copying = decryption > > In fact, for a given player, disc and title key, you can form an > abelian group {decryption^n : n an integer} of string functions under > composition that is isomorphic to the integers. If you don't understand > what I just said, forget it, it's not important. Yes, but don't forget that the only "copying" that anybody has been able to demonstrate here is from Shamos, and that was not bit-for-bit copying, but rather copying of a file that had gone through lossy compression. In that case, it's not the identity function you refer to. Kaplan might be sent off the right track by the testimony that the Windows DeCSS function included some copying ability to start with, to the hard drive. The copies made subsequently have nothing to do with DeCSS, but Kaplan evidently thinks so. So it has to go in the record more clearly. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 22:58:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA29606 for dvd-discuss-outgoing; Mon, 24 Jul 2000 22:58:44 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA29603 for ; Mon, 24 Jul 2000 22:58:43 -0400 Received: from agape.murphy.cx ([166.84.198.139]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA2683 for ; Mon, 24 Jul 2000 22:58:28 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id WAA03536 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 22:57:48 -0400 Date: Mon, 24 Jul 2000 22:57:47 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Here's a good site for info. Message-ID: <20000724225747.B3218@agape.murphy.cx> References: <20000724044349.B10510@eldritchpress.org> <20000724092425.A545@localhost> <20000724222719.G10510@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: <20000724222719.G10510@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Mon, Jul 24, 2000 at 10:27:19PM -0400, thus spake Eric Eldred: > Yes, security through obscurity would never work, so I'm > not maintaining that CSS would be improved by open source, > but only that if MPAA wished to release some product that > was secure, they should allow peer review. We have heard > testimony that this peer review is very important to > assessing security. Will Bruce Schneier get a chance > to testify? Not according to the Friday transcript: 980 7 THE COURT: Who are the remaining witnesses? 8 MR. ATLAS: I will give you the possible choices. 9 THE COURT: This sounds look a trade for a pitcher. 10 MR. ATLAS: Mr. Einhorn, Mr. Touretzky, Mr. Appel, 11 Mr. DiBona and Mr. Abelson are sort of the potentials, and 12 over the weekend we are going to work out exactly who we feel 13 we need, and we will advise plaintiffs' counsel as soon as we 14 know. [snip] 25 MR. ATLAS: Possibly Olegario Craig. Definitely him. -- Roy Murphy \ CSpice -- A mailing list for Clergy Spouses murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 23:13:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29741 for dvd-discuss-outgoing; Mon, 24 Jul 2000 23:13:35 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA29738 for ; Mon, 24 Jul 2000 23:13:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11406 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 23:15:54 -0400 Date: Mon, 24 Jul 2000 23:15:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Questions about the P's burden Message-ID: <20000724231549.L10510@eldritchpress.org> References: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Mon, Jul 24, 2000 at 03:36:22PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 03:36:22PM -0600, John Zulauf wrote: > After following the brief and strange case by the plaintiffs it struck me > that I didn't know what they were trying to claim about DeCSS and what the > actual basis of the lawsuit is. What is the burden of proof on the > plaintiff's? They seem to be treating 2600 like Franz K and claiming he's > guilty by accusation, but never being clear on what the violation of law is, > or how he violated it..... Excellent. Now we have to get all that in the record. Get Jack Valenti on the stand to explain it to us. Don't you think all this will make a great movie? I can see Harrison Ford drive away from the Jaguar dealer in his new XK8 roadster and getting stopped by a motorcycle cop. "Do you know how fast you were driving, sir?" says the cop? "Yes, my fancy speedometer says I was driving exactly 37.4 km/hr." "Okay, I'm pulling you in." "For what, the speed limit here is 65 mph!" "Yes, but your vehicle POTENTIALLY could go as fast as 200 kph. And we know that speed kills. Tell it to the judge. Her son was killed last night by a speeder in a Jaguar." From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 23:25:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29896 for dvd-discuss-outgoing; Mon, 24 Jul 2000 23:25:30 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA29886 for ; Mon, 24 Jul 2000 23:25:15 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11442 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 23:27:49 -0400 Date: Mon, 24 Jul 2000 23:27:44 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! Message-ID: <20000724232743.M10510@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Mon, Jul 24, 2000 at 03:00:17PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 03:00:17PM -0700, Michael.A.Rolenz@aero.org wrote: > > I wouldn't worry about the legality of Shamos' actions. I'm certain the > necessary paper work was done or will be done. I agree. I started by wondering, on the basis on looking at what Shamos had done, to question where the "authorization" came from. It appears that it is not the authorization to descramble that is in question, but rather the authorization from DVD-CCA to distribute a means of descrambling (by virtue of their assertion that DeCSS is such a method and that by virtue of DMCA it is illegal to distribute such a method, and by virtue of their contract with the studios). (It's not very easy to reach that conclusion based on the testimony, so the record ought to be developed more. And Kaplan is not making it any easier, by refusing to hear testimony about the law and how it was intended, and the facts on what are the licenses and how they are obtained.) So it appears that there is more than one authorization in question here. The consumer who views a DVD has the authorization in hand to view it and if necessary descramble it in order to view it. The consumer who buys a DVD player doesn't have nor need any further authorization. The only point then is whether DVD-CCA has some means to enforce their monopoly on player authorizations, by relying on the proxy in DMCA to represent the copyright holders. But the copyright law is written to protect copyright holders, not those who claim some sort of patent protection on a device for which they have not filed a patent. There are strong grounds for tossing out the DMCA, if this is the only point to settle. And the DVD-CCA and MPAA ought to be open then to antitrust problems. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 23:31:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA29996 for dvd-discuss-outgoing; Mon, 24 Jul 2000 23:31:31 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA29992 for ; Mon, 24 Jul 2000 23:31:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11463 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 23:33:54 -0400 Date: Mon, 24 Jul 2000 23:33:49 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Questions about the P's burden Message-ID: <20000724233349.N10510@eldritchpress.org> References: <611C0CE12596D311B466009027D5E7591E4E8B@c100.clearway.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <611C0CE12596D311B466009027D5E7591E4E8B@c100.clearway.com>; from Ray@clearway.com on Mon, Jul 24, 2000 at 06:37:21PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 06:37:21PM -0400, Leland Ray wrote: >... > There is a huge problem with the way courts work when a > very focused case is defended using a broad spectrum > attack. In order to really flesh out the defense case, > the defense must cover contract, copyright, antitrust, > and first amendment issues. Most of their attempts to > get into these subjects are objected to and omitted > for relevance. Judge Kaplan might understand the plaintiffs' case without hearing any testimony, but I still can't. For me, it's not that I insist on "beyond a reasonable doubt" but rather "a rational citizen who buys a DVD" could understand the rights and obligations of the law. Without simple definitions (such as in the Microsoft case, Kaplan notes) this is awfully hard. Even we here who have some technical expertise are still almost completely confused, and a judgment from Kaplan is not likely to clarify anything. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 23:37:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30054 for dvd-discuss-outgoing; Mon, 24 Jul 2000 23:37:13 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30051 for ; Mon, 24 Jul 2000 23:37:12 -0400 Received: from ppp.anonymizer.com (c2T2-016.015.popsite.net [216.126.185.16]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id UAA20980; Mon, 24 Jul 2000 20:38:47 -0700 (PDT) Message-Id: <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Mon, 24 Jul 2000 20:37:45 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] The trial movie In-Reply-To: <20000724231549.L10510@eldritchpress.org> References: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <000401bff5b7$35e6c640$87ce0593@ia.nsc.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 11:15 PM 7/24/2000 -0400, Eric Eldred wrote: >Don't you think all this will make a great movie? No promises here, it's not my promise to make; but a certain Academy Award winning director is voraciously devouring all there is to read, including trial transcripts. He's fascinated, but I don't know whether that will translate into anything. He has no love for the studios, MPAA. He is a longtime friend. More I say not. -J, taking casting suggestions ;-) -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 24 23:43:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA30137 for dvd-discuss-outgoing; Mon, 24 Jul 2000 23:43:15 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA30134 for ; Mon, 24 Jul 2000 23:43:03 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA11499 for dvd-discuss@eon.law.harvard.edu; Mon, 24 Jul 2000 23:45:37 -0400 Date: Mon, 24 Jul 2000 23:45:32 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] My impressions of the trial -- days 4 & 5 Message-ID: <20000724234532.O10510@eldritchpress.org> References: <397BD9CF.296AE590@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Mon, Jul 24, 2000 at 07:03:16PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 07:03:16PM -0400, Arnold G. Reinhold wrote: > ... > If my cable service provider prevented me from downloading a 650MB > file, say the latest Linux distribution, I'd be pretty annoyed. No > ISP bats an eyelash if someone with a dial-up connection downloads a > 20MB file. Why should they object if someone on a cable connection, > which is 50x faster, downloads a 1 GB file every now and then? Oh no, once they finish their buildout and have enough subscribers then they get concerned if a lot of their bandwidth is taken up by subscribers doing things like exchanging MP3 files or hosting web servers (like I do) or tying up the local segment by downloading movies--THAT THEY DON'T GET MONEY SELLING TO YOU. I am beginning to see the the cable tv companies see high bandwidth Internet as just another way for them to sell pay-TV to you, to stream content down to you consumers. And again, just like MPAA, they try to use technology to control your use of the content they claim to own all of. Yes, you might get upset if you can't download Linux. So the cable company says sorry you have exceeded your monthly bandwidth allocation, sir, and please send in another $100 if you want more. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 00:02:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30775 for dvd-discuss-outgoing; Tue, 25 Jul 2000 00:02:09 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30747 for ; Tue, 25 Jul 2000 00:01:55 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA11563 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 00:04:29 -0400 Date: Tue, 25 Jul 2000 00:04:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotguns and Summers Days Message-ID: <20000725000424.P10510@eldritchpress.org> References: <4.3.2.7.2.20000724184147.00aa7a90@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.3.2.7.2.20000724184147.00aa7a90@127.0.0.1>; from j.s.tyre@cyberpass.net on Mon, Jul 24, 2000 at 06:44:58PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 06:44:58PM -0700, James S. Tyre wrote: > For those who may care, this is the Summers case which Kaplan mentioned on > Friday.... thanks for posting this interesting case. okay, this is about negligence. The apportionment of blame came after the court found that the two parties had both shot in the direction of plaintiff, and that this was in fact negligent. In the MPAA case, there has been no finding of fact that DeCSS had anything to do with copies of DVD allegedly said to allegedly be found on the Internet, nor that the other means of making such copies did not occur. after the finding of negligence, the defendants were to apportion blame themselves. In this case, Kaplan seems to be saying that plaintiffs do not have to prove any facts, but that if defense brings up the point that there might be intervening facts then defense has to prove its innocence or otherwise be totally responsible for blame. And that this is all a matter of law and defense is not permitted to request that facts be submitted to contest. This would be setting Summers on its head. I have to asssume that defense lawyers are clever enough to figure this out and put it into the record. Kaplan seems to be showing off his legal knowledge here. But what does it have to do with copyright law? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 00:06:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30959 for dvd-discuss-outgoing; Tue, 25 Jul 2000 00:06:28 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30956 for ; Tue, 25 Jul 2000 00:06:27 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.60.551d2c1 (4314) for ; Tue, 25 Jul 2000 00:05:00 -0400 (EDT) Message-ID: <60.551d2c1.26ae6beb@cs.com> Date: Tue, 25 Jul 2000 00:04:59 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 105 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It does have merit to it, our own government regards encryption as an armament, why not take the next step and extend it the constitutional freedoms armaments get? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 00:18:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31215 for dvd-discuss-outgoing; Tue, 25 Jul 2000 00:18:27 -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 AAA31212 for ; Tue, 25 Jul 2000 00:18:26 -0400 Message-ID: <20000725041717.28269.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Mon, 24 Jul 2000 21:17:17 PDT Date: Mon, 24 Jul 2000 21:17:17 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] We've proved Reverse Engineering 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 Kaplan denied the RE exception for three reasons: First, defendants have offered no evidence to support this assertion. Second, even assuming that DeCSS runs under Linux, it concededly runs under Windows---a far more widely used operating system---as well. It therefore cannot reasonably be said that DeCSS was developed "for the sole purpose" of achieving interoperability between Linux and DVDs. Finally, and most important, the legislative history makes it abundantly clear that Section 1201(f) permits reverse engineering of copyrighted computer programs only and does not authorize circumvention of technological systems that control access to other copyrighted works, such as movies.21 In consequence, the reverse engineering exception does not apply. Reason #1 & #2 has been blown out of the water by Johansen & Pavlovich: 1. DeCSS was a direct contribution that lead to LiViD's player 2. DeCSS was obtained by reverse engineering the Xing player 3. It is a windows app because Linux lacked stable UDF support 4. As a windows app it enabled Johansen to watch his DVD's under Linux Reason #3 is a question of law that we have pretty thoroughly refuted in our amicus brief, IMHO: 1. The RE'ed Xing player IS a computer program 2. DeCSS allows access to the disc and title key elements per 1201(f)(1) and then the first half of 1201(f)(2) and then 1201(f)(3) follow 3. The second half of 1201(f)(2) requires only interoperability between an independently created program (LiViD's player) and an 'other' program (UDF driver, CSS encryptor, .vob as program) etc... 4. The movie files are the information exchanged. 5. Statute requires noninfringement. We win on fair use: Betamax. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 00:19:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31261 for dvd-discuss-outgoing; Tue, 25 Jul 2000 00:19:10 -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 AAA31250 for ; Tue, 25 Jul 2000 00:19:09 -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 AAA08120; Tue, 25 Jul 2000 00:18:27 -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 AAA08095; Tue, 25 Jul 2000 00:17:03 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> References: <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> Date: Tue, 25 Jul 2000 00:16:59 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] The trial movie 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 8:37 PM -0700 7/24/2000, James S. Tyre wrote: >At 11:15 PM 7/24/2000 -0400, Eric Eldred wrote: > >>Don't you think all this will make a great movie? > >No promises here, it's not my promise to make; but a certain Academy >Award winning director is voraciously devouring all there is to >read, including trial transcripts. He's fascinated, but I don't >know whether that will translate into anything. > >He has no love for the studios, MPAA. He is a longtime friend. >More I say not. > Tell him to get his butt on a plane today and visit the trial!!!! I wish there were videos. It is quite a show. I think Wednesday is supposed to be the last day of testimony. During a break while I was there, I explained the case to a young woman from Israel who had no idea what was going on. She had wandered into the courthouse and asked if there was an interesting trial in progress. The guards sent her to room 12D. They know. >-J, taking casting suggestions ;-) He could do worse than having the participants play themselves. Arnold Reinhold PS Anyone know who the young man in the audience with the purple hair is? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 01:02:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31925 for dvd-discuss-outgoing; Tue, 25 Jul 2000 01:02:57 -0400 Received: from mtiwmhc22.worldnet.att.net (mtiwmhc22.worldnet.att.net [204.127.131.47]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA31922 for ; Tue, 25 Jul 2000 01:02:56 -0400 Received: from [12.88.198.30] ([12.88.194.13]) by mtiwmhc22.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000725050148.FFSF6710.mtiwmhc22.worldnet.att.net@[12.88.198.30]> for ; Tue, 25 Jul 2000 05:01:48 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Tue, 25 Jul 2000 01:01:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Recent Depositions available Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The following depositions are now available in the EFF archives: Michael Einhorn: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_ny_einhorn_dep.html Peter Ramadge: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000714_ny_ramadge_dep.html David Touretzky: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000713_ny_touretzky_dep.html Larry Peterson: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000710_ny_peterson_dep.html Bruce Schneier: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000709_ny_schneier_dep.html Olegario Craig: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000705_ny_craig_dep.html Harold Abelson: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000705_ny_abelson_dep.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 01:22:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32182 for dvd-discuss-outgoing; Tue, 25 Jul 2000 01:22:23 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32173 for ; Tue, 25 Jul 2000 01:22:11 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA11646 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 01:24:46 -0400 Date: Tue, 25 Jul 2000 01:24:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000725012441.A11596@eldritchpress.org> References: <20000725041717.28269.qmail@web509.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000725041717.28269.qmail@web509.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Mon, Jul 24, 2000 at 09:17:17PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 24, 2000 at 09:17:17PM -0700, Bryan Taylor wrote: > Kaplan denied the RE exception for three reasons: > > > First, defendants have offered no evidence to support this assertion. > > Second, even assuming that DeCSS runs under Linux, it concededly runs > under Windows---a far more widely used operating system---as well. It > therefore cannot reasonably be said that DeCSS was developed "for the > sole purpose" of achieving interoperability between Linux and DVDs. > > Finally, and most important, the legislative history makes it > abundantly clear that Section 1201(f) permits reverse engineering of > copyrighted computer programs only and does not authorize circumvention > of technological systems that control access to other copyrighted > works, such as movies.21 In consequence, the reverse engineering > exception does not apply. > > > Reason #1 & #2 has been blown out of the water by Johansen & Pavlovich: > 1. DeCSS was a direct contribution that lead to LiViD's player > 2. DeCSS was obtained by reverse engineering the Xing player > 3. It is a windows app because Linux lacked stable UDF support > 4. As a windows app it enabled Johansen to watch his DVD's under Linux And even if Windows DeCSS is not allowed as RE, then turn that around and say that Linux LiViD css-auth and other components cannot therefore be banned if Windows DeCSS is, since they are definitely reached by the reverse engineering and for the reasons of compatibility. > Reason #3 is a question of law that we have pretty thoroughly refuted > in our amicus brief, IMHO: > 1. The RE'ed Xing player IS a computer program > 2. DeCSS allows access to the disc and title key elements per > 1201(f)(1) > and then the first half of 1201(f)(2) and then 1201(f)(3) follow > 3. The second half of 1201(f)(2) requires only interoperability between > > an independently created program (LiViD's player) and an 'other' > program (UDF driver, CSS encryptor, .vob as program) etc... > 4. The movie files are the information exchanged. > 5. Statute requires noninfringement. We win on fair use: Betamax. Doesn't it seem pretty clear that "circumvention" could never have been intended to apply to a situation where a user had a valid DVD disc and a valid DVD player? That is, it is not the program itself that can be illegal, but rather if it is put to an illegal purpose, such as "commercial or private financial gain" by distributing infringing copies or derivative works? Hence the exception for compatibility reasons (but not excluding other reasons, for example using a DVD-CCA authorized player to perform the decryption when playing the disc). But you are right that Kaplan is confused about the technology: he tries to distinguish between a "computer program" and a "technological system that controls access". What could he mean--a black descrambler box, the player keys, or what? Where is that distinction made in the law? Or is it only that the crafters of the law and MPAA assumed that their control of DVD-CCA would protect them even if they did not seek a patent or copyright or protect their trade secrets? I'd still like to hear from Jack Valenti on what he thinks he meant by the law. (I'm picking him for a starring role in the movie :-) From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 01:47:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32356 for dvd-discuss-outgoing; Tue, 25 Jul 2000 01:47:50 -0400 Received: from h0050da62b39d.ne.mediaone.net (root@h0050da62b39d.ne.mediaone.net [24.147.219.153]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32353 for ; Tue, 25 Jul 2000 01:47:49 -0400 Received: from mit.edu (IDENT:ravi_n@localhost.localdomain [127.0.0.1]) by h0050da62b39d.ne.mediaone.net (8.9.3/8.9.3) with ESMTP id BAA10380; Tue, 25 Jul 2000 01:48:05 -0400 Message-ID: <397D2A15.2669C209@mit.edu> Date: Tue, 25 Jul 2000 01:48:05 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering References: <20000725041717.28269.qmail@web509.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: > > Kaplan denied the RE exception for three reasons: > > > First, defendants have offered no evidence to support this assertion. > > Second, even assuming that DeCSS runs under Linux, it concededly runs > under Windows---a far more widely used operating system---as well. It > therefore cannot reasonably be said that DeCSS was developed "for the > sole purpose" of achieving interoperability between Linux and DVDs. > > Finally, and most important, the legislative history makes it > abundantly clear that Section 1201(f) permits reverse engineering of > copyrighted computer programs only and does not authorize circumvention > of technological systems that control access to other copyrighted > works, such as movies.21 In consequence, the reverse engineering > exception does not apply. > > > Reason #1 & #2 has been blown out of the water by Johansen & Pavlovich: > 1. DeCSS was a direct contribution that lead to LiViD's player > 2. DeCSS was obtained by reverse engineering the Xing player > 3. It is a windows app because Linux lacked stable UDF support > 4. As a windows app it enabled Johansen to watch his DVD's under Linux > > Reason #3 is a question of law that we have pretty thoroughly refuted > in our amicus brief, IMHO: > 1. The RE'ed Xing player IS a computer program > 2. DeCSS allows access to the disc and title key elements per > 1201(f)(1) > and then the first half of 1201(f)(2) and then 1201(f)(3) follow > 3. The second half of 1201(f)(2) requires only interoperability between > > an independently created program (LiViD's player) and an 'other' > program (UDF driver, CSS encryptor, .vob as program) etc... > 4. The movie files are the information exchanged. > 5. Statute requires noninfringement. We win on fair use: Betamax. > I'd think we'd also want to bring up "DVD is a program" to bolster reverse engineering even though Kaplan will probably laugh it out of court. As I recall, the "program" standard is laughably low and the MPAA conceded it by claiming "HTML is a program". Even if we don't get it now, it is part of the groundwork for an appeal. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 01:55:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA00341 for dvd-discuss-outgoing; Tue, 25 Jul 2000 01:55:16 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA00338 for ; Tue, 25 Jul 2000 01:55:15 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id AAA13851 for ; Tue, 25 Jul 2000 00:54:20 -0500 Message-ID: <397D2D2D.A73E4448@mninter.net> Date: Tue, 25 Jul 2000 01:01:17 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Recent Depositions available 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 There's more of the MPAA reverse-engineering ethics blahbity-blah in these depositions. I cannot comprehend what they think they're driving at. Schnieider, P 47 Q. But as far as you're aware, is there a 3 standards making organization that issues guidelines 4 with respect to ethical consideration in 5 cryptographic research? This demonstrates quite breathtakingly the studios' approach to the first amendment. Even if you dare to feel entitled to reverse engineer or perform cryptographic research under 1201, they cannot BELIEVE you would just go BLAB about it! On the internet! To ANYONE, without regard for their use of the information! Without extorting money from them, or subjecting them to a restrictive and lucrative license! I'm afraid, Hollywood, that this is why most people publish things. I understand that 90% of the crap you publish has no use aside from entertainment, so you must be quite disturbed and confused to realize that some people use their first amendment right to publish things that have uses, that educate, or that incite or make possible action. Yet another exasperated diatribe. Sorry. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 03:11:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA02168 for dvd-discuss-outgoing; Tue, 25 Jul 2000 03:11:16 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA02165 for ; Tue, 25 Jul 2000 03:11:15 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY800H7QRWAPO@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 00:09:47 -0700 (PDT) Date: Tue, 25 Jul 2000 00:27:42 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] fact on DVD player to bring in In-reply-to: <20000724125247.B1784@localhost> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY800H7RRWBPO@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: <611C0CE12596D311B466009027D5E7591E4E85@c100.clearway.com>; from Ray@clearway.com on Mon, Jul 24, 2000 at 02:34:05PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well I don't know about how often it have changed by the right answer is 20 years: http://www.uspatentinfo.com/3.html http://www.uspto.gov/web/offices/com/doc/uruguay/uruguay.html > Did it change again, up from 20 years? > > On Mon, Jul 24, 2000 at 02:34:05PM -0400, Leland Ray wrote: > > > > Not any more. They have been extended to 25 years. > > > > -----Original Message----- > > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > > Sent: Monday, July 24, 2000 11:38 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > > Patents are for 17 years. I don't think that's unreasonable either. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 03:47:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA02410 for dvd-discuss-outgoing; Tue, 25 Jul 2000 03:47:25 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA02407 for ; Tue, 25 Jul 2000 03:47:24 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY800K37SZLOM@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 00:33:21 -0700 (PDT) Date: Tue, 25 Jul 2000 00:51:39 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] X-Men on DivX, though not on DVD In-reply-to: <20000724213857.8973.qmail@web509.mail.yahoo.com> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY800K38SZLOM@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > How good/bad is it? > How can you tell that it's from a camcorder? Probably people's heads appearing, audience sounds, people eating pop corn, screen occasionally bobbing, looks extremely out of focus. But I'm just guessing. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 04:12:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02684 for dvd-discuss-outgoing; Tue, 25 Jul 2000 04:12:19 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA02681 for ; Tue, 25 Jul 2000 04:12:14 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FY8001ZAU6A9Z@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 00:58:58 -0700 (PDT) Date: Tue, 25 Jul 2000 01:16:55 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] DivX quality In-reply-to: To: dvd-discuss@eon.law.harvard.edu Message-id: <0FY8001ZBU6A9Z@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Somewhere down the line, it would be nice to ask the MPAA to demonstrate > the following from a DivX > > 1. Please access the "Making of..." section of a particular DVD (DivX > would generally only contain the movie, it would not have menus / add-ons > > 2. Please demonstrate DivX Surround Sound... (DivX would not have surround > sound but would only have [at best] stereo sound) Is this really true? (If so, I am very disappointed in the inflexibility of these so called "standards" ...) > 3. Please tell the court how many frames per second were removed in order > to make this DivX. Actually this is the least likely degradation. Perhaps a better approach would be to bring in two (large) computer monitors play back a DivX version and a DVD version and just point out the obvious artifacts that anyone can plainly see. (At least *I* have no problems seeing them.) Heck, I think the best would be to compare DivX, DVD, and VHS together. > 4. Please show the court how to select alternative camera angles from a > DivX file. (Some DVDs would have multiple camera angles available for a > given scene) > > I think it is important not to let the "perfect digital copies" argument > fly, when they talk about DivX. DivX does not compare to DVD, period. > > That would level the playing ground somewhat, because now we're talking > apples and apples again. Now, DivX is just another medium. When we're > talking severely degraded quality, DivX becomes no different than a > typical home VCR. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 04:22:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02875 for dvd-discuss-outgoing; Tue, 25 Jul 2000 04:22:50 -0400 Received: from utkemich.user.msu.edu (ppp-206-170-2-123.sntc01.pacbell.net [206.170.2.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA02872 for ; Tue, 25 Jul 2000 04:22:45 -0400 Received: from utkemich (localhost [127.0.0.1]) by utkemich.user.msu.edu (8.9.3/8.9.3/Debian/GNU) with SMTP id BAA02107 for ; Tue, 25 Jul 2000 01:21:09 -0500 From: "Michael Utke Jr." To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Tuesday Witnesses (was: Here's a good site for info.) Date: Tue, 25 Jul 2000 01:17:07 -0500 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain MIME-Version: 1.0 Message-Id: <00072501210800.02099@utkemich> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Mon, Jul 24, 2000 at 10:27:19PM -0400, thus spake Eric Eldred: >Will Bruce Schneier get a chance > to testify? And on Mon, 24 Jul 2000 22:57:47 -0400 , Roy Murphy replied: >Not according to the Friday transcript: >7 THE COURT: Who are the remaining witnesses? >8 MR. ATLAS: I will give you the possible choices. >9 THE COURT: This sounds look a trade for a pitcher. >10 MR. ATLAS: Mr. Einhorn, Mr. Touretzky, Mr. Appel, >11 Mr. DiBona and Mr. Abelson are sort of the potentials, and >12 over the weekend we are going to work out exactly who we feel >13 we need, and we will advise plaintiffs' counsel as soon as we >14 know. >[snip] >25 MR. ATLAS: Possibly Olegario Craig. Definitely him. Well, the Openlaw DVD page (http://eon.law.harvard.edu/openlaw/DVD/) has been updated, and now lists: Day 6 -- Tuesday, July 25: Defense witnesses may include Chris DiBona, Andrew Appel, Michael Einhorn, David Touretzky, Ole Craig, Hal Abelson, Bruce Schneier. ...so don't count him out yet. Mike From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 05:02:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA04238 for dvd-discuss-outgoing; Tue, 25 Jul 2000 05:02:42 -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 FAA04235 for ; Tue, 25 Jul 2000 05:02:40 -0400 Received: from jy01 (user-2inihj2.dialup.mindspring.com [165.121.70.98]) by tisch.mail.mindspring.net (8.9.3/8.8.5) with SMTP id FAA32139 for ; Tue, 25 Jul 2000 05:02:01 -0400 (EDT) Message-Id: <200007250902.FAA32139@tisch.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 25 Jul 2000 04:58:02 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] The trial movie In-Reply-To: References: <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >PS Anyone know who the young man in the audience with the purple hair is? That was me probably, and it changes every day. Macki, of 2600, has the blue sky hair like Windows "clouds" I'd die for and his transparent skin is spectacularly envious. The man with the orange and green hair, knee boots, thermal long johns under chopped jeans, nose ring, tatoo and more, is, or was, my wife for a while, until he/she was thumbed into chambers. The Siamese boy and girl, I think, sleeping quietly under Proskauer's table is brilliant ploy, silver chains running from their legs to that of Charles Sims brings gasps of pleasure and soundless applause from oglers dropping by from the Garment District. There's an anteroom outside Ladies and Gents, with phones, where transformative makeovers are done for allcomers, and there's no way to politely describe what happens to telephoners while they try to tell outsiders the thrill of losing basic human rights, dignity, self-respect, your honor. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 09:50:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA10592 for dvd-discuss-outgoing; Tue, 25 Jul 2000 09:50:10 -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 JAA10589 for ; Tue, 25 Jul 2000 09:50:09 -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 JAA10981 for ; Tue, 25 Jul 2000 09:49:30 -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 JAA15347 for ; Tue, 25 Jul 2000 09:45:41 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200007250902.FAA32139@tisch.mail.mindspring.net> References: <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <000401bff5b7$35e6c640$87ce0593@ia.nsc.com> <4.3.2.7.2.20000724202318.00ab3530@127.0.0.1> <200007250902.FAA32139@tisch.mail.mindspring.net> Date: Tue, 25 Jul 2000 09:42:57 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] The trial movie 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 > >PS Anyone know who the young man in the audience with the purple hair is? > >That was me probably, and it changes every day. Sorry, if I had know I would have said hello. I had bushy graying hair and a mustache, wore a blue blazer and sat up front on the window side near the cute blond from Prosaker. Nice hair. I hope they get it right in the movie. Arnold From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 10:03:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11199 for dvd-discuss-outgoing; Tue, 25 Jul 2000 10:03:10 -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 KAA11196 for ; Tue, 25 Jul 2000 10:03:09 -0400 Received: from localhost (jerwin@localhost) by osf1.gmu.edu (8.8.8/8.8.8) with ESMTP id KAA05290 for ; Tue, 25 Jul 2000 10:02:32 -0400 (EDT) Date: Tue, 25 Jul 2000 10:02:32 -0400 (EDT) From: Jeremy A Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in In-Reply-To: <0FY800H7RRWBPO@mta6.snfc21.pbi.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, 25 Jul 2000, Paul Hsieh wrote: > Well I don't know about how often it have changed by the right answer is 20 years: > > http://www.uspatentinfo.com/3.html > http://www.uspto.gov/web/offices/com/doc/uruguay/uruguay.html > > > Did it change again, up from 20 years? > > > > On Mon, Jul 24, 2000 at 02:34:05PM -0400, Leland Ray wrote: > > > > > > Not any more. They have been extended to 25 years. > > > > > > -----Original Message----- > > > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > > > Sent: Monday, July 24, 2000 11:38 AM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > > > > Patents are for 17 years. I don't think that's unreasonable either. The WIPO standard is twenty years from the filing date. The US standard used to be seventeen years from the issue date. As for twenty-five years: Objection, hearsay... If you have any evidence to support a term of twenty-five years, I'd be glad to hear it. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 10:42:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA14005 for dvd-discuss-outgoing; Tue, 25 Jul 2000 10:42:18 -0400 Received: from janus.bbn.com (burl-dhcp154-137.genuity.com [171.78.154.137]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA13998 for ; Tue, 25 Jul 2000 10:42:16 -0400 From: dsr@bbn.com Received: (qmail 22731 invoked by uid 1000); 25 Jul 2000 14:41:06 -0000 Date: Tue, 25 Jul 2000 10:41:05 -0400 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] DVD as program; 17 USC 117 applies? Message-ID: <20000725104105.A22472@bbn.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Disposition: inline User-Agent: Mutt/1.2i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Excuse me if this has been brought up before; I'e searched the archives and haven't seen this argument. The content of a DVD disk is a program or program(s) by the definition in 101. Then, 117 (a) (1) says that the owner may make copies and modifications of the program. DeCSS is a tool for making such modifications, in the same way that any patching utility is, or the various cheater modules for game consoles. -dsr- -- dsr@bbn.com/genuity.net Evangelist 781.262.4514 Internet Systems Engineering ___________________________________________________________________ UNIX will be 1 billion seconds old at 21:46:40 EST Sat Sept 8 2001. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 10:57:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA14550 for dvd-discuss-outgoing; Tue, 25 Jul 2000 10:57:47 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA14546 for ; Tue, 25 Jul 2000 10:57:45 -0400 Received: by aero.org id <17101-1>; Tue, 25 Jul 2000 07:57:03 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdLRAa10044; Tue Jul 25 07:56:55 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 07:56:25 -0700 Subject: Re: [dvd-discuss] "Computers for Lawyers" To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 07:56:21 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 07:57:01 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I read it last night. You're right. He seems to be getting more computer literate too... Roy Murphy @eon.law.harvard.edu on 07/24/2000 06:13:35 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] "Computers for Lawyers" Yea, verily on Mon, Jul 24, 2000 at 05:04:04PM -0700, > These > people could really benefit from a computers 101 course. I know there are > "computers for dummies" books out there. That's why Kaplan is pushing the lawyers to agree on some definitions of which he can take judicial notice. See the Friday transcript. -- Roy Murphy \ CSpice -- A mailing list for Clergy Spouses murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 10:58:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA14713 for dvd-discuss-outgoing; Tue, 25 Jul 2000 10:58:59 -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 KAA14710 for ; Tue, 25 Jul 2000 10:58:58 -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 KAA07074 for ; Tue, 25 Jul 2000 10:58:20 -0400 (EDT) Message-Id: <4.2.2.20000725104342.0275fb70@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 25 Jul 2000 10:58:12 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Tuesday Witnesses In-Reply-To: <00072501210800.02099@utkemich> 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 01:17 AM 7/25/00 -0500, Michael Utke Jr. wrote: >Well, the Openlaw DVD page (http://eon.law.harvard.edu/openlaw/DVD/) has been >updated, and now lists: >Day 6 -- Tuesday, July 25: Defense witnesses may include Chris DiBona, Andrew >Appel, Michael Einhorn, David Touretzky, Ole Craig, Hal Abelson, Bruce >Schneier. The Openlaw page is only speculating on whom the witnesses "may include" based on those deposed, remarks at trial, and the EFF updates. I'm planning to head down to the courthouse this afternoon finally to catch a bit of the trial, and I'll update the listings as soon as I can this evening. --Wendy (afraid I won't add to the hair-color count in the gallery, as unexceptional brown is surely already represented) 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 Jul 25 11:03:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15567 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:03:38 -0400 Received: from dial140.roadrunner.com (dial140.cybermesa.com [209.12.75.140] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA15564 for ; Tue, 25 Jul 2000 11:03:35 -0400 Received: (from paul@localhost) by dial140.roadrunner.com (8.8.7/8.8.7) id JAA01344 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 09:03:50 -0600 Date: Tue, 25 Jul 2000 09:00:26 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 5, p.831: copying and encryption Message-ID: <20000725090026.A545@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 Day 5, p.831: 20 Q. Now, at the end of 1999, did you know that CSS was a 21 protected device protecting digital copyrighted movies? 22 A. I knew it was an encryption standard that had been applied 23 to DVDs. I did not see it as the same thing as preventing 24 illegal copying, no. 25 Q. Why not? What's the difference? p. 832 1 A. Again, I'm not a lawyer, so my understanding of the 2 nuances might be a bit vague, but -- 3 Q. Sir, I would like you to not give me any legal opinions. 4 THE COURT: Mr. Gold, he was trying to answer so 5 let's hear the answer. 6 MR. GOLD: Thank you, your Honor. 7 A. My understanding is the protection, the copyright law is 8 meant to protect the owner of the copyright from having 9 illegal works distributed whether by copying or any other kind 10 of infringement where the work or the copyright holder is not 11 compensated for the work. And my analysis of CSS and what CSS 12 accomplished was not the same thing as that. In other words, 13 copying of DVDs was not affected by whether or not one 14 decrypted CSS or one did not decrypt CSS. 25 Q. Why not? What's the difference? Too bad I can't question Mr. Gold: 1. Please specify what is "protected" by CSS: a. exclusive rights? (should this be a 1201(b) case?) b. access? If so, please define access. c. The DVD-CCA license; a contract that restricts the kinds of functions *aside from descrambling* which licensed player devices or programs may implement. 2. What are you suggesting that CSS proper protects? I'm not asking about the effect of player-design limitations imposed by the CSS-contract, I'm asking about the actual thing, action or property of the work protected by CSS. 3. Encryption is not a solution to the "copying problem". a. Do you know what encryption is? b. What real-world problems can one solve using cryptography? 4. Please describe *any* copy protection system that operates after publication and that allows viewing of a work (i.e. other than destruction of the copies). Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 11:05:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA15809 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:05:31 -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 LAA15806 for ; Tue, 25 Jul 2000 11:05:29 -0400 Received: from travel-net.com (trj92.travel-net.com [207.176.160.92]) by mail.travel-net.com (8.9.3/8.9.3) with ESMTP id KAA24515 for ; Tue, 25 Jul 2000 10:03:18 -0400 Message-ID: <397DAC1E.E5A3B6C@travel-net.com> Date: Tue, 25 Jul 2000 11:02:54 -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] Re: not sure where this fits... References: <20000724193413.11689.qmail@web515.mail.yahoo.com> 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 LAA15807 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ummmmmmm been thinking about this all weekend. Forgive me if this has already been covered somewhere else, but Kaplan got us all thinking about "why" the lawsuit, with his horse/barn door analogy and the 37,000 canoes on the Hudson, etc. He was trying to figure out why the lawsuit was going forward (presumably so he woulndt have to throw it out on the spot as being a waste of the court's time). I believe that the answer to why they are so gung ho about it may lie in some contract we havent seen nor would ever think to ask for in disco. To me, the promise of DVD fgor the stakeholders must have been (at least in someone's eyes) the promise of a media where there would be no losses due to piracy. Surely the promise of that could/would have been factored into agreements to command a premium somewhere. "C'mon nobodys gonna pirate this. Isnt that worth an extra "x" percent?" Now my fuddled brain is unable to come up with why this is useful, but my instincts (and I always trust my instincts before the first cup of coffee) tell me there's something worth pursuing. Any able to help out with this line? Bryan Taylor wrote: > > A poster on Slashdot says he has seen X-Men on DivX and that the > quality is actually pretty good. It is not available on DVD (it's still > in the theaters). > > If we could get this into evidence it should convince even Kaplan that > another shotgun did the damage. > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.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 Jul 25 11:36:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16703 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:36:24 -0400 Received: from dial218.roadrunner.com (dial218.cybermesa.com [209.12.75.218] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA16699 for ; Tue, 25 Jul 2000 11:36:18 -0400 Received: (from paul@localhost) by dial218.roadrunner.com (8.8.7/8.8.7) id JAA01485 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 09:36:36 -0600 Date: Tue, 25 Jul 2000 09:36:34 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725093634.A1354@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 Day 5, p. 850: 3 THE COURT: That's the page you get if you enter the 4 universal resource locator www.2600.com into your browser, 5 true? False. www.2600.com is a hostname, not a uniform resource locator. A URL is URL is URL is URL. http://www.2600.com/ is a URL. This is an 'href' tag, called a 'hyper-link' by some. Deep linking is a fiction created by courts because they are displeased with the consequences of automated parsing of a precise syntax. That displeasure doesn't remove the speech value from the syntax; (nearly/completely) all of the functionality is in the parsing and in HTTP, the data-transfer protocol. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 11:37:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16717 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:37:05 -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 LAA16714 for ; Tue, 25 Jul 2000 11:37:04 -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 LAA18604 for ; Tue, 25 Jul 2000 11:36:25 -0400 (EDT) Message-Id: <4.2.2.20000724210038.00e62b30@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 25 Jul 2000 11:36:19 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] "Computers for Lawyers" 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 Great idea. "Facts" about technology and its capabilities are having a huge impact on the law's development. Those who get their version of the facts across, as the MPAA did in pushing for the DMCA because "digital copies are different," get a big advantage in arguing how the law should apply to those facts. With a strong caveat from Lessig that we should not take any current technical "facts" as permanent conditions, I think a straight description of what exists now would be very helpful. I see your point also about the more basic facts, such as the descriptions Kaplan is taking from the Microsoft Findings. The less working with object code and CVS seem like arcane activities that only "evil hackers" would engage in, the more likely we are to get reasonable reverse engineering, cryptographic research, and fair use exceptions. Perhaps we need a "reasonable computer programmer" standard. (TPMs, even effective ones, are not clear property lines, but fuzzy boundaries that chill all sorts of productive and protected activity, even if it's not activity lawyers and judges ordinarily see.) --Wendy At 05:04 PM 7/24/00 -0700, Michael.A.Rolenz@aero.org wrote: >I don't know about anybody else but I'm getting tired of hearing lawyers >talk about object code as if understanding it were some sort of litmus test >between "normal people" and the subhuman geeks intent on wrecking >destruction upon cyberspace and the world as we know it today.....these >people could really benefit from a computers 101 course. I know there are >"computers for dummies" books out there....maybe the "community" needs to >create a "computers for lawyers" book as well. [as for any lawyers reading >this....you can supply the questions and outline]...I don't know about >anyone else, but I'm a bit disturbed that things that have been second >nature to me for over 22 yrs (e.g., compilers, assembly language, object >code) are so completely misunderstood by the courts and legal profession. >Yet these people have GOT to get some understanding of it because of the >sheer numbers of computers that are in use today...off the soapbox 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 Jul 25 11:51:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17366 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:51:34 -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 LAA17363 for ; Tue, 25 Jul 2000 11:51:33 -0400 Message-ID: <20000725155025.19501.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 25 Jul 2000 08:50:25 PDT Date: Tue, 25 Jul 2000 08:50:25 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] The Register trial article 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.theregister.co.uk/content/1/12148.html __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 11:52:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17397 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:52:32 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA17379 for ; Tue, 25 Jul 2000 11:52:16 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id LAA12020 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 11:54:57 -0400 Date: Tue, 25 Jul 2000 11:54:52 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725115451.A11953@eldritchpress.org> References: <20000725093634.A1354@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000725093634.A1354@localhost>; from fenimore@roadrunner.com on Tue, Jul 25, 2000 at 09:36:34AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 09:36:34AM -0600, Paul Fenimore wrote: > Day 5, p. 850: > > 3 THE COURT: That's the page you get if you enter the > 4 universal resource locator www.2600.com into your browser, > 5 true? > > > False. www.2600.com is a hostname, not a uniform resource locator. A > URL is URL is URL is URL. > > http://www.2600.com/ is a URL. > > This is an 'href' tag, called a > 'hyper-link' by some. > > Deep linking is a fiction created by courts because they are displeased > with the consequences of automated parsing of a precise syntax. That > displeasure doesn't remove the speech value from the syntax; > (nearly/completely) all of the functionality is in the parsing and > in HTTP, the data-transfer protocol. Again I wonder if Kaplan is not being too clever. What's the point of distinguishing deep links from home page links, and object code from source code? Does he think he might rule that deep links are illegal--while The New York Times posting a link to the page at 2600 that contains links to DeCSS is okay, but that 2600 cannot host that page so long as it has any deep links? And that it is okay to post the source code but not the object code? Fine, his ruling would be ridiculous pomposity and a waste of everyone's time. Hal Abelson has deposed, as well as Professor Felton, that both source and object code are creative expressions and protectable by the First Amendment. And the deep link idea is just not supportable by law or practice. The deep link theory depends on the copyright holder of some work objecting to the deep link or framing; in this case, there is no such objection or infringement. Presumably MPAA would object to either, but it will have to settle to neither being illegal in the end. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 11:55:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17523 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:55:52 -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 LAA17520 for ; Tue, 25 Jul 2000 11:55:51 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id JAA21068 for ; Tue, 25 Jul 2000 09:55:14 -0600 Date: Tue, 25 Jul 2000 09:55:14 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS does not come from Warner! In-Reply-To: <20000724214706.2355.qmail@web515.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=X-UNKNOWN Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from QUOTED-PRINTABLE to 8bit by eon.law.harvard.edu id LAA17521 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There's no provenance to the authorization, so how do you know that he had it? The totally weak part is that Shamos failed to prove authorization, and under copyright law, there is no implicit authorization: either you have an explicit license or you don't. On Mon, 24 Jul 2000, Bryan Taylor wrote: > Why are people obsessed with this? It's totally weak. > > 1201(a)(1) is not effective yet. Shamos used an unlicenced player. This > is still legal until October. Shamos did not distribute any player, as > the MPAA argues would be prohibited by 1201(a)(2). > > Shamos did not comit simple copyright infringement because he had > authorization. Because of the relevence to a trial, it is probably fair > use anyway. > > --- John Schulien wrote: > > Ravi Nanavati wrote: > > > > > No one knows what the terms of [the CCA license is] > > > but one of the terms is probably (or can retroactively > > > made to be without us knowing) an exclusive grant > > > of authority to the DVD CCA to grant others the > > > authority to descramble the CSS-encrypted DVD > > > version of the work. > > > > Ok the original testimony was: > > > > > 12 Q. Can Warner decide on its own to allow a company to play > > > 13 its DVDs without that company having a license from the > > > 14 DVD-CCA? > > > > > 15 A. No, not if we have encrypted the movie. > > > > King testified that Warner does NOT have the authority > > to grant authority to run CSS. Therefore, either: > > > > 1) Shamos obtained a special license from the DVD > > CCA to conduct the demonstration. > > > > 2) Warner has violated the CCA contract by contracting > > Shamos to engage in an actual, real life commercial > > use of DeCSS. > > > > 3) Shamos acted illegally. > > > > 4) King lied. > > > > or > > > > 5) Shamos acted legally, in which case the > > defendants also acted legally. > > > > I mean, the point I'm making, is that, if this were a trial > > about pickpocketing, it would not be acceptable for > > the plaintiff to hire an "expert" to go to Grand Central > > Station and actually pickpocket a couple of people, > > then show up at trial and display his collection of > > watches and wallets. > > > > How is it that Shamos is allowed to commit the > > same "crime" as the defendants, and enter the > > fruits of his "crime" into evidence? > > > > Or am I missing something? > > > > > > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail – Free email you can access from anywhere! > http://mail.yahoo.com/ > -- FINE, I take it back: UNfuck you! Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 11:59:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17574 for dvd-discuss-outgoing; Tue, 25 Jul 2000 11:59:30 -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 LAA17571 for ; Tue, 25 Jul 2000 11:59:28 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id KAA04423 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 10:58:49 -0500 Date: Tue, 25 Jul 2000 10:58:49 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000725105849.A4358@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000725041717.28269.qmail@web509.mail.yahoo.com> <20000725012441.A11596@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000725012441.A11596@eldritchpress.org>; from eldred@eldritchpress.org on Tue, Jul 25, 2000 at 01:24:41AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > On Mon, Jul 24, 2000 at 09:17:17PM -0700, Bryan Taylor wrote: > > And even if Windows DeCSS is not allowed as RE, then turn that > around and say that Linux LiViD css-auth and other components > cannot therefore be banned if Windows DeCSS is, since they are > definitely reached by the reverse engineering and for the reasons > of compatibility. That reminds me- if the defense loses can they dispute the wording of the injunction, assuming the permanent one echoes the wording of the temporary one? Because, as I've mentioned before, the wording of the temporary injunction goes far beyond 1201- it specifically says 2600 can't post "any computer program, file or device that may be used to decrypt or unscramble", which obviously covers a lot more than just DeCSS.exe; there's obviously a lot of LiVid code that probably falls under that definition. Can Matthew Pavlovich's work for the defense be read as LiVid being in "active concert or or participation" with 2600? If so, look for them to try and shut down LiVid in about a month... Eric From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:02:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17637 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:02:19 -0400 Received: from dial218.roadrunner.com (dial218.cybermesa.com [209.12.75.218] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA17634 for ; Tue, 25 Jul 2000 12:02:16 -0400 Received: (from paul@localhost) by dial218.roadrunner.com (8.8.7/8.8.7) id KAA01567 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 10:02:37 -0600 Date: Tue, 25 Jul 2000 10:02:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725100236.A1516@localhost> References: <20000725093634.A1354@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000725093634.A1354@localhost>; from fenimore@roadrunner.com on Tue, Jul 25, 2000 at 09:36:34AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu page 850: 7 THE COURT: You have other pages that are, so to 8 speak, behind the home page, right? He can chose to see it as "behind" if he want to, and so can the designer of the web site if he wants to, BUT THE WHOLE POINT OF HTML IS TO ELIMINATE THOSE DESIGN RESTRICTIONS!! HTML is not a book, and it was intended to get rid of a requirement for "before" and "behind" if that is what suited the task at hand. It is supposed to be a flat information architecture. Go ask Berners-Lee, or heaven forbid actual learn by trying the thing in question. Fiat: all information spaces must preserve the structure of the book because movie companies are unhappy with the convenience of partially automated information processing. This is very frustrating. Paul Fenimore On Tue, Jul 25, 2000 at 09:36:34AM -0600, Paul Fenimore wrote: > Day 5, p. 850: > > 3 THE COURT: That's the page you get if you enter the > 4 universal resource locator www.2600.com into your browser, > 5 true? > > > False. www.2600.com is a hostname, not a uniform resource locator. A > URL is URL is URL is URL. > > http://www.2600.com/ is a URL. > > This is an 'href' tag, called a > 'hyper-link' by some. > > Deep linking is a fiction created by courts because they are displeased > with the consequences of automated parsing of a precise syntax. That > displeasure doesn't remove the speech value from the syntax; > (nearly/completely) all of the functionality is in the parsing and > in HTTP, the data-transfer protocol. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:05:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17710 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:05:42 -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 MAA17707 for ; Tue, 25 Jul 2000 12:05:41 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id KAA21233 for ; Tue, 25 Jul 2000 10:05:04 -0600 Date: Tue, 25 Jul 2000 10:05:04 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? 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 It'd be funny if the X-Nen demo happened on Shamos's VAIO: with the 15" LCD, it'd probably look exactly like the DVD of The Matrix :) On Mon, 24 Jul 2000 Michael.A.Rolenz@aero.org wrote: > > Of course has anybody noted that the MPAA also keeps saying that the > encrypted to prevent perfect copies from being made without degradation? > compressing a DVD down to something that can be shown on a computer monitor > probably degrades it. MPAA Objective ACHIEVED. > > WRT to the shotgun. While the starting point for much law, it's not > applicable here. The shotgun pellets were so intermingled that there was no > way to determine which came from what and a clean miss is nearly impossible > if you're gun is pointed in the general direction of something [especially > if a smart coroner counted the number of pellets and found nearly double > the shot.....John Mortimer used that case as the basis for one of his > Rumpole scripts]. Goldstein did comply with the injunction but not their > original request. The two others who did comply with the original request > are not being sued. Goldstein cannot be held liable for the actions of > others only for his own. > > > > > "Arnold G. Reinhold" @eon.law.harvard.edu on > 07/24/2000 03:59:30 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: Re: [dvd-discuss] Transcript, day 5: page 818, how many shotguns? > > > At 11:22 AM -0600 7/24/2000, Paul Fenimore wrote: > >page 818: > > > > 14 Just by way of a parenthetical digression, I am well > > 15 aware that the issue of the extent to which there is > > 16 sufficient proof that there are in fact decrypted movies > > 17 available over the Internet has not been decided and we are > > 18 going to have further discussion about that. My question > > 19 presupposes, just on a hypothetical basis, if there is > > 20 adequate proof to find that there are such movies out there. > > > >Kaplan is under the delusion that distributing a scrambled or > >encrypted movie over the internet is copy control. This is wrong. > >Descrambling comes either before or after copying. By the requirement > >that a cause must preceed an effect, descrambling cannot be > >controlling copying. Scrambling controls use as in performance > >of the plaintext, not copying. > > I think the argument here is that by allowing access to plaintext, > DeCSS permits the compression that is necessary to produce a 650MB > movie file, which is arguably a size were Internet posting becomes > feasible, at least for users with high speed access. > > The MPAA claims that 650 MB Divx files started appearing on the > Internet shortly after DeCSS was posted. Suppose the MPAA had been > able to exhibit a copyrighted move in Divx format that it had > downloaded from one of these sites after DeCSS was posted and was > able to further prove that DeCSS was used to decrypt the data that > was then Divx compressed. Then I think there would be a strong case > that the plaintiffs had actually been damaged by DeCSS. The MPAA has > two problems. First it has not shown that DeCSS was used. That is > where the shotgun case comes in. The Judge is saying that case > (Summers v. Tyce) suggests plaintiffs don't have to prove that DeCSS > was used to decrypt the files, rather the defense has to prove it > wasn't. > > The second problem is that plaintiffs have not exhibited even one of > the allegedly posted Divx files. It only attempted to show that some > Internet sites **claim** to have Divx movie files available. The > Judge questioned whether that constituted sufficient proof. (The > defense says it is hearsay.) As the Judge put it [July 20 p. 665 line > 6]: "And the way those kinds of issues are usually handled in a > trademark case is that the investigator comes in and says that I went > to the store on Fordham Road and I bought these six pairs of > counterfeit jeans and here they are, and a witness shows up from > Levis and says we didn't make them, they're counterfeit." > > The judge later suggested some arguments the plaintiffs might use to > save their hides on this point [see p. 666 l. 18], but if I were the > defense, I would use the shotgun argument to say "Look, if the burden > of proof is on us, you must require the plaintiffs to have produced > the actual files at discovery. Then we should have been given enough > time to show that the files in evidence were not decoded by DeCSS, > either by applying forensic tests or by tracing them to the source. > Plaintiffs haven't done that, so there is no proof of any damage" > > The bad news it that the MPAA will know what to do next time. > > > Arnold Reinhold > > > -- FINE, I take it back: UNfuck you! Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:18:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18533 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:18:24 -0400 Received: from dial103.roadrunner.com (sf-du103.cybermesa.com [209.12.75.103]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18530 for ; Tue, 25 Jul 2000 12:18:20 -0400 Received: (from paul@localhost) by dial103.roadrunner.com (8.8.7/8.8.7) id KAA01716 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 10:18:40 -0600 Date: Tue, 25 Jul 2000 10:18:39 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725101839.B1516@localhost> References: <20000725093634.A1354@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000725093634.A1354@localhost>; from fenimore@roadrunner.com on Tue, Jul 25, 2000 at 09:36:34AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 09:36:34AM -0600, Paul Fenimore wrote: > Day 5, p. 850: > > 3 THE COURT: That's the page you get if you enter the > 4 universal resource locator www.2600.com into your browser, > 5 true? > > > False. www.2600.com is a hostname, not a uniform resource locator. A > URL is URL is URL is URL. > > http://www.2600.com/ is a URL. To avoid misunderstanding, and the thought that I'm nit-picking: the terminal slash specifies a directory, the root directory. Many web servers are configured to do something with a "magic" file name in the root directory, and present it as the "home page", *even if the user fails to specify the file by name*. This is not a property of URLs or HTTP, it is a property of a web browser and its configuration files. Absence of the terminal slash in this case is ambiguous: more than one user, organization or "web site" _could_ be present on the machine. Some web browsers are configured to "do sensible things" when the URL fails to specify a file. All of this is a convenience for people who don't want to know the details of a web "site". Inferring that there is something inherent to HTML or human communication in making it this way is wrong. It is done that way so that people accustomed to books don't get frustrated. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:25:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19683 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:25:57 -0400 Received: from dial64.roadrunner.com (dial64.cybermesa.com [209.12.75.64] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19680 for ; Tue, 25 Jul 2000 12:25:54 -0400 Received: (from paul@localhost) by dial64.roadrunner.com (8.8.7/8.8.7) id KAA01871 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 10:26:10 -0600 Date: Tue, 25 Jul 2000 10:26:08 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725102607.A1737@localhost> References: <20000725093634.A1354@localhost> <20000725115451.A11953@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000725115451.A11953@eldritchpress.org>; from eldred@eldritchpress.org on Tue, Jul 25, 2000 at 11:54:52AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 11:54:52AM -0400, Eric Eldred wrote: [ ... ] > Fine, his ruling would be ridiculous pomposity and a waste of > everyone's time. Hal Abelson has deposed, as well as Professor > Felton, that both source and object code are creative expressions > and protectable by the First Amendment. And the deep link idea > is just not supportable by law or practice. The deep link theory > depends on the copyright holder of some work objecting to the > deep link or framing; in this case, there is no such objection or > infringement. Presumably MPAA would object to either, but it > will have to settle to neither being illegal in the end. Quite frankly, I don't understand any of the deep-linking stuff. The deep-linking stuff looks to me to be: 1. A use control after publication. 2. A limitation on the right of others to mention and reference. I don't see any copyright infringement stemming from a reference. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:26:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19693 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:26:35 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19690 for ; Tue, 25 Jul 2000 12:26:33 -0400 Received: from ppp.anonymizer.com (c4T2-058.015.popsite.net [216.126.187.58]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id JAA00568 for ; Tue, 25 Jul 2000 09:27:56 -0700 (PDT) Message-Id: <4.3.2.7.2.20000725091356.00b9f8e0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 25 Jul 2000 09:26:33 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname In-Reply-To: <20000725115451.A11953@eldritchpress.org> References: <20000725093634.A1354@localhost> <20000725093634.A1354@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 11:54 AM 7/25/2000 -0400, Eric Eldred wrote: > > > > Deep linking is a fiction created by courts because they are displeased > > with the consequences of automated parsing of a precise syntax. That > > displeasure doesn't remove the speech value from the syntax; > > (nearly/completely) all of the functionality is in the parsing and > > in HTTP, the data-transfer protocol. > >Again I wonder if Kaplan is not being too clever. What's the >point of distinguishing deep links from home page links, and >object code from source code? Does he think he might rule that >deep links are illegal--while The New York Times posting a link >to the page at 2600 that contains links to DeCSS is okay, but >that 2600 cannot host that page so long as it has any deep links? >And that it is okay to post the source code but not the object >code? I have a thought on this, and some similar occasions when Kaplan has briefly taken over the questioning. I don't know that I'm right, but I've seen it happen many times before. The subject matter of this trial is new to Kaplan, as it would be to most any judge. I don't have an opinion on just how much Kaplan knows about computers and the Net, but it is clear that his knowledge, predating this trial, was more than -0-. And, this is a bench trial, so he need not be constrained by what is or is not said in front of a jury. He is aware of cases which have raised the deep linking issue, he has some of the best minds there are on the stand, he's indulging his personal curiosity to pick their brains a bit, even if not directly relevant to the case at hand. I could be wrong, it could be that Kaplan does see a real significance in this case to linking and object/source issues, but if he is just indulging his curiosity, it would be the kind of thing which has happened in thousands of trials. If you were the judge, and had both the curiosity and the opportunity, would not you take advantage of it? -------------------------------------------------------------------- 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 Tue Jul 25 12:29:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19855 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:29:58 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19852 for ; Tue, 25 Jul 2000 12:29:55 -0400 Received: by aero.org id <17127-1>; Tue, 25 Jul 2000 09:29:07 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdXVAa16774; Tue Jul 25 09:28:41 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 09:28:11 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 09:28:10 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 09:28:52 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You missed my point. If it has outlived its usefulness, then it probably isn't worth the patent or copyright fees spent on it. Somebody probably invented something better. Also, if it has outlived its usefulness, then it's probably not being used by even the original assignee. The licensing fees might be dirt cheap at that time if you wanted to get them. Also, you can't patent a mouse trap - only a better one. So design a better mouse trap. The problem is not with the term of the patent. The problem with this is that the patent office has been granting patents for out and out nonsense these days - check out the AGI patents on STK [patents the computerized link budget], check out the TRW patents on Odd-yssey[patents a set of satellite orbits]. Check out the Teledesic Patents on using Ka band antennas for non geosynchronous orbits[narrowbeam antennas don't interfere with geosyncrhonous satellites for long]. That kind of crap should not have been allowed to be patented. They are allowing patenting of vague, nebulous, inventions or ideas Then arguing infringement. That is the problem. BTWAll that happened with the TRW patents was that they found that after spending $3B having a patent on a system was a lot easier than building it. They fought with another company on the "infringement" and then they traded stock. The other company is coming out of chapter 11 (or is it chapter 13, 14?). Oh another wonderful patent - cardboard sleeves for coffee cups, patented by starbucks. Rather than allowing the patent office to patent anything and then having it enter the public domain sooner, tighten up the regulations what can be patented and keep the term the same. Phil Karn put this on his website...it's spooky. That's no typo on the date. 1882 is correct. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities lawsuits and vexatious accountings for profits made in good faith. (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)). Jim Bauer @eon.law.harvard.edu on 07/24/2000 06:20:29 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in Michael.A.Rolenz@aero.org wrote: > >Another argument against shortening the time is that if it does become >obsolete by the time the patent has expired, then something has made it >obsolete. To be replaced by something else that is patented. Also nowadays, big companies get together and cross licenses their patents so they can work together to elminate the small guys. Somehow I don't think the founding fathers had that in mind. >One ironic twist on the Sonny Bono Extension Law is that in many states >one must exercise one's property rights at least once a year or one can >loose REAL property but intellectual property can be kept well beyond a >lifetime without doing anything. Isn't it imperative for works patented or copyrighten to go into public domain *before* they outlived they usefullness? Otherwise, what's the point? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:34:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20329 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:34:18 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA20326 for ; Tue, 25 Jul 2000 12:34:16 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QDP0>; Tue, 25 Jul 2000 12:38:38 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E90@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] fact on DVD player to bring in Date: Tue, 25 Jul 2000 12:38:32 -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 Objection sustained. I misremembered. Damn numbers. They are the source of all our problems. -----Original Message----- From: Jeremy A Erwin [mailto:jerwin@osf1.gmu.edu] Sent: Tuesday, July 25, 2000 10:03 AM To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in On Tue, 25 Jul 2000, Paul Hsieh wrote: > Well I don't know about how often it have changed by the right answer is 20 years: The WIPO standard is twenty years from the filing date. The US standard used to be seventeen years from the issue date. As for twenty-five years: Objection, hearsay... If you have any evidence to support a term of twenty-five years, I'd be glad to hear it. Jeremy From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:36:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA20542 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:36:49 -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 MAA20539 for ; Tue, 25 Jul 2000 12:36:48 -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 MAA08169 for ; Tue, 25 Jul 2000 12:36:11 -0400 (EDT) Message-Id: <4.2.2.20000725121451.00ddb940@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Tue, 25 Jul 2000 12:36:05 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Authority to decode CSS ... In-Reply-To: References: <20000724214706.2355.qmail@web515.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 We've beaten around the authorization arguments for a long time. I'd say the most important element is that there's no explicit indication of un-authorization of DeCSS use of a DVD. If, as rst nicely describes, the DMCA creates a code-as-law regime, the MPAA wants to take that one step further to enforce an unwritten law (perhaps determined only post-facto). Since nobody tells us that CSS decryption requires authority of the copyright owner, we don't know it's a TPM when we make or distribute a tool to bypass it. To return to bad analogies, if the DMCA allows copyright owners to fence in their properties and then sue for trespass, shouldn't the burden be on the plaintiff to demonstrate that its property line was visible and legally recorded to give potential trespassers notice? (Note that in the analogy, breaching the TPM, not even accessing the work, is the "trespass.") Never mind that plaintiffs are trying to gate the entire community in which their house is located... Describing the flaws in hypothetical authorization models is useful for CSS2, if the studios respond by making explicit their licensing terms, but here, plaintiffs refuse even to disclose the licensing terms they would claim make CSS an effective TPM. The default cannot be that _everything_ is a TPM until proven otherwise (CSS, MPEG compression, record grooves that match a particular needle and turntable speed...), but that only declared authorization mechanisms with obvious channels of operation suffice to invoke the DMCA's wrath. --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 Tue Jul 25 12:46:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22228 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:46:17 -0400 Received: from california.valinux.ny ([216.73.169.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA22205 for ; Tue, 25 Jul 2000 12:46:16 -0400 From: jim@valinux.com Received: from localhost (jgleason@localhost) by california.valinux.ny (8.9.3/8.9.3) with ESMTP id MAA14994 for ; Tue, 25 Jul 2000 12:49:49 -0400 X-Authentication-Warning: california.valinux.ny: jgleason owned process doing -bs Date: Tue, 25 Jul 2000 12:49:49 -0400 (EDT) X-Sender: jgleason@california.valinux.ny To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] day 1 and protest photos? In-Reply-To: <20000724195829.A29501@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 All of the photos that I am aware of are linked here: New York Linux Users Demonstrate at DVD Trial: 7/17/00 http://www.nylug.org/7_17_00_page.html - Jim --------------------------------------------------------------- Jim Gleason VA Linux Systems email: jim@valinux.com http://www.valinux.com phone: 212-858-7684 President, New York Linux Users Group fax: 212-858-7685 http://www.nylug.org --------------------------------------------------------------- On Mon, 24 Jul 2000, Sham Gardner wrote: > On Mon, Jul 24, 2000 at 01:49:50PM -0500, mw@themail.com wrote: > > > > I thought for sure, Declan would have had some with his article. > > Did I overlook? > > > > Anyone know where the photos are? > > I don't know if they're the ones you're after, but there is a site linked > from my page that has quite a few (URL in the sig) and several more in the > NYLUG writeup. These are photographs of the protest *outside* the > courthouse. AFAIK cameras aren't permitted inside. > > Sham > > -- > Constantly updated links to coverage of the New York case commencing > on July 17th 2000: > http://sites.inka.de/risctaker/DeCSS/ > ---------------------------------------------------------------- Jim Gleason VA Linux Systems email: jim@valinux.com http://www.valinux.com phone: 212-858-7684 Pres. New York Linux Users Group fax: 212-858-7685 http://www.nylug.org ---------------------------------------------------------------- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:47:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA22954 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:47:13 -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 MAA22951 for ; Tue, 25 Jul 2000 12:47:11 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13H7qf-0007cB-00; Tue, 25 Jul 2000 18:46:29 +0200 Received: from localhost by sites.inka.de with local id 13H7qi-00077u-00; Tue, 25 Jul 2000 18:46:32 +0200 Date: Tue, 25 Jul 2000 18:46:32 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000725184632.A26865@inka.de> References: <20000725041717.28269.qmail@web509.mail.yahoo.com> <20000725012441.A11596@eldritchpress.org> <20000725105849.A4358@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000725105849.A4358@thud.reric.net>; from eds@reric.net on Tue, Jul 25, 2000 at 10:58:49AM -0500 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 10:58:49AM -0500, Eric Seppanen wrote: > Can Matthew Pavlovich's work for the defense be read as LiVid being in > "active concert or or participation" with 2600? If so, look for them to > try and shut down LiVid in about a month... As far as I can tell LiViD's site is linuxvideo.org and hosted in Germany, out of reach of the DMCA as such. That obviously didn't stop them from going after Jon Johansen. Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 12:49:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA23183 for dvd-discuss-outgoing; Tue, 25 Jul 2000 12:49:39 -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 MAA23179 for ; Tue, 25 Jul 2000 12:49:37 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13H7t6-0007fd-00; Tue, 25 Jul 2000 18:49:00 +0200 Received: from localhost by sites.inka.de with local id 13H7t9-00079F-00; Tue, 25 Jul 2000 18:49:03 +0200 Date: Tue, 25 Jul 2000 18:49:03 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] day 1 and protest photos? Message-ID: <20000725184903.B26865@inka.de> References: <20000724195829.A29501@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: ; from jim@valinux.com on Tue, Jul 25, 2000 at 12:49:49PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 12:49:49PM -0400, jim@valinux.com wrote: > All of the photos that I am aware of are linked here: > > New York Linux Users Demonstrate at DVD Trial: 7/17/00 > http://www.nylug.org/7_17_00_page.html There are a few more at http://www.dadadada.net/~billy/ Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 13:02:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25450 for dvd-discuss-outgoing; Tue, 25 Jul 2000 13:02:48 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25447 for ; Tue, 25 Jul 2000 13:02:47 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QDTA>; Tue, 25 Jul 2000 13:07:10 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E91@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] We've proved Reverse Engineering Date: Tue, 25 Jul 2000 13:07:00 -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 If a claim of irrelevancy leads to a denial of the RE exception, then this could be an appeals question. Consider the construction of the law: 1. After time t, you shall not do X. 2. Starting now, you shall not traffic in a device that primarily does X. 3. An affirmative defense for doing X is Y. After time t, a court would have to hear evidence of Y in deciding if someone actually did X. But if you prove a device does X, shouldn't the court also be bound to consider the Y defense, even if the creation of the device is not an issue in the case? The lack of evidence is a real sticky thing. Nobody who originally did the reverse engineering showed up in court to own up to it. -----Original Message----- From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] Sent: Tuesday, July 25, 2000 12:17 AM To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] We've proved Reverse Engineering Kaplan denied the RE exception for three reasons: First, defendants have offered no evidence to support this assertion. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 13:03:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25497 for dvd-discuss-outgoing; Tue, 25 Jul 2000 13:03:03 -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 NAA25473 for ; Tue, 25 Jul 2000 13:03:02 -0400 Message-ID: <20000725170151.26269.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Tue, 25 Jul 2000 10:01:51 PDT Date: Tue, 25 Jul 2000 10:01:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] We've proved Reverse Engineering 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 --- Sham Gardner wrote: > As far as I can tell LiViD's site is linuxvideo.org and hosted in > Germany, out of reach of the DMCA as such. That obviously didn't > stop them from going after Jon Johansen. Of course, by "going after" him, they managed to help him win an award and a Parlimentary apology. He was only questioned, not "arrested". >From the EFF update on Johansen's testimony: The courageous teen also revealed that the MPAA filed charges against Jon and his father Per, instigating the Norwegian Economic Crime Unit to ask Jon to answer questions at the police station in January 2000. His testimony revealed a flaw in the judge's thinking, who has previously stated in several opinions that the teen was arrested and has inferred guilt therefrom. Not only was Johansen never arrested for developing the software, the Norwegian government awarded Jon a prestigious award for his excellent grades in high school and his contribution to society for creating DeCSS. Although it did not come out in court today, the Norwegian parliament has also issued the young teen a formal apology for the treatment he has undergone as a result of publishing the code. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 13:26:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA27896 for dvd-discuss-outgoing; Tue, 25 Jul 2000 13:26:42 -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 NAA27893 for ; Tue, 25 Jul 2000 13:26:40 -0400 Received: from localhost (galt@localhost) by inconnu.isu.edu (8.9.3/8.9.3) with ESMTP id LAA22927 for ; Tue, 25 Jul 2000 11:26:03 -0600 Date: Tue, 25 Jul 2000 11:26:03 -0600 (MDT) From: John Galt To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname In-Reply-To: <20000725100236.A1516@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 If we do submit an amicus, would it be appropriate to include a copy of RFC1738 (50K text file...). Theoretically, a URL could include seriously deep linking: ftp://anonymous:galt\@inconnu.isu.edu@metalab.unc.edu:21/pub/docs/rfc/rfc1738.txt * quote from RFC1738: "The user name (and password), if present, are followed by a commercial at-sign "@", within the user and password field, any ":", "@", or "/" must be encoded" anonymous passwords are traditionally your email address, so for the password field, we'd have to encode galt@inconnu.isu.edu for myself Actually, this could be our position: since the URL scheme implies that one can specify a username:password@host, true deep linking implies a specific user account on a machine, while shallow linking implies anonymous access (needless to say, 2600 only uses shallow links by that definition :) This is more in line with my reading of the RFCs, where deep implies deepness of trust rather than deepness of directory structure (for example, anyone can get into my chrooted http and ftp servers, it takes a certain amount of trust to get an account, you have to be trusted further to upload, and NOBODY gets trusted with root...), while their URLs actually tend to shorten with trust (from /pub/this/that/theotherthing to /~username/ftpdir to /uploads) On Tue, 25 Jul 2000, Paul Fenimore wrote: > page 850: > > 7 THE COURT: You have other pages that are, so to > 8 speak, behind the home page, right? > > He can chose to see it as "behind" if he want to, and so can the > designer of the web site if he wants to, BUT THE WHOLE POINT > OF HTML IS TO ELIMINATE THOSE DESIGN RESTRICTIONS!! HTML is not > a book, and it was intended to get rid of a requirement for "before" > and "behind" if that is what suited the task at hand. It is supposed > to be a flat information architecture. Go ask Berners-Lee, or heaven > forbid actual learn by trying the thing in question. > > Fiat: all information spaces must preserve the structure of the > book because movie companies are unhappy with the convenience of > partially automated information processing. > > This is very frustrating. > > > Paul Fenimore > > On Tue, Jul 25, 2000 at 09:36:34AM -0600, Paul Fenimore wrote: > > Day 5, p. 850: > > > > 3 THE COURT: That's the page you get if you enter the > > 4 universal resource locator www.2600.com into your browser, > > 5 true? > > > > > > False. www.2600.com is a hostname, not a uniform resource locator. A > > URL is URL is URL is URL. > > > > http://www.2600.com/ is a URL. > > > > This is an 'href' tag, called a > > 'hyper-link' by some. > > > > Deep linking is a fiction created by courts because they are displeased > > with the consequences of automated parsing of a precise syntax. That > > displeasure doesn't remove the speech value from the syntax; > > (nearly/completely) all of the functionality is in the parsing and > > in HTTP, the data-transfer protocol. > -- FINE, I take it back: UNfuck you! Who is John Galt? galt@inconnu.isu.edu, that's who! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 13:37:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28198 for dvd-discuss-outgoing; Tue, 25 Jul 2000 13:37:37 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA28195 for ; Tue, 25 Jul 2000 13:37:35 -0400 Received: from agape.murphy.cx ([198.223.37.198]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA2ADA for ; Tue, 25 Jul 2000 13:36:28 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id NAA01169 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:35:48 -0400 Date: Tue, 25 Jul 2000 13:35:48 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "Computers for Lawyers" Message-ID: <20000725133547.B478@agape.murphy.cx> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Tue, Jul 25, 2000 at 07:57:01AM -0700, thus spake Michael.A.Rolenz@aero.org: > I read it last night. You're right. He seems to be getting more computer > literate too... I know someone who is a network person for the Federal courts (he was involved in implementing the PDF system for distributing orders via the web). He says that Judge Kaplan is one of the more technically knowledgable judges in the Circuit. Kaplan sits on the committee that reviews the technology used by the Circuit. OTON, it's also true that a little knowledge may be dangerous. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 13:42:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA28792 for dvd-discuss-outgoing; Tue, 25 Jul 2000 13:42:53 -0400 Received: from rasputin.xilix.com (larsg@rasputin.xilix.com [195.139.104.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA28789 for ; Tue, 25 Jul 2000 13:42:51 -0400 Received: (from larsg@localhost) by rasputin.xilix.com (8.9.3/8.9.3) id TAA03713 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 19:38:24 +0200 From: Lars Gaarden Message-Id: <200007251738.TAA03713@rasputin.xilix.com> Subject: Re: [dvd-discuss] We've proved Reverse Engineering To: dvd-discuss@eon.law.harvard.edu Date: Tue, 25 Jul 2000 19:38:24 +0200 (CEST) In-Reply-To: <20000725184632.A26865@inka.de> from "Sham Gardner" at Jul 25, 2000 06:46:32 PM X-Mailer: ELM [version 2.5 PL0pre8] MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > On Tue, Jul 25, 2000 at 10:58:49AM -0500, Eric Seppanen wrote: > > Can Matthew Pavlovich's work for the defense be read as LiVid being in > > "active concert or or participation" with 2600? If so, look for them to > > try and shut down LiVid in about a month... > > As far as I can tell LiViD's site is linuxvideo.org and hosted in Germany, > out of reach of the DMCA as such. That obviously didn't stop them from going > after Jon Johansen. Neither MPAA not DVDCCA went after Johansen. They sent a request to the norwegian authorities to look into the case. -- LarsG From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:02:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA29581 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:02:31 -0400 Received: from outgoing.themail.com (outgoing.themail.com [216.64.18.10]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA29578 for ; Tue, 25 Jul 2000 14:02:28 -0400 From: mw@themail.com Received: from mail.TheMail.com ([216.64.2.154]) by outgoing.themail.com (8.10.1/8.10.1) with SMTP id e6M2nCP00636 for ; Fri, 21 Jul 2000 21:49:12 -0500 (EST) Date: Fri, 21 Jul 2000 21:49:12 -0500 (EST) Message-Id: <200007220249.e6M2nCP00636@outgoing.themail.com> Received-From: mail.TheMail.com To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy X-Priority: 3 Authorized-User: mw@TheMail.com IP-Address: 209.210.169.2 MIME-Version: 1.0 Content-Type: multipart/mixed; boundary="___TheMail_19_Boundary___" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --___TheMail_19_Boundary___ Content-type: text/plain And like along the lines of what Wendy wrote: People know it's wrong to shoot someone. We know what the law is in that area. However, in Oct 1999, many could have done the same thing (decrypting)without realizing the penalties of the actions. Even today, someone could do the same thing without knowing the new law. AND I still wonder who let the ("SECRET") CSS code out of the box? > >If someone argued these programs cant be restricted on 2nd Amendment grounds, > >the analogy would become clearer. > > > > __________________________________________________________________ Make A Buck Or Two @ TheMail.com - Free Internet Email Sign-up today at http://www.themail.com/ref.htm?ref=44883 --___TheMail_19_Boundary___-- From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:06:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30082 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:06:23 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30036 for ; Tue, 25 Jul 2000 14:06:10 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA12122 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:08:44 -0400 Date: Tue, 25 Jul 2000 14:08:39 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The Register trial article Message-ID: <20000725140839.B11953@eldritchpress.org> References: <20000725155025.19501.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000725155025.19501.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Jul 25, 2000 at 08:50:25AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 08:50:25AM -0700, Bryan Taylor wrote: > > http://www.theregister.co.uk/content/1/12148.html "as every rocket scientist and his lowbrow deaf-mute assistant well knows. " I resent this casting decision. I would cast the rocket scientist as Dr Honeydew and his assistant as Beaker. Otherwise a pretty good article, thanks. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:10:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30447 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:10:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30444 for ; Tue, 25 Jul 2000 14:10:08 -0400 Received: by aero.org id <17104-7>; Tue, 25 Jul 2000 11:09:24 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdFVAa26413; Tue Jul 25 11:09:05 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 11:04:21 -0700 Subject: Re: [dvd-discuss] "Computers for Lawyers" To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 11:04:16 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 11:09:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Committee....reviews technology.....hmmmmmmm Roy Murphy @eon.law.harvard.edu on 07/25/2000 10:38:47 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] "Computers for Lawyers" Yea, verily on Tue, Jul 25, 2000 at 07:57:01AM -0700, thus spake Michael.A.Rolenz@aero.org: > I read it last night. You're right. He seems to be getting more computer > literate too... I know someone who is a network person for the Federal courts (he was involved in implementing the PDF system for distributing orders via the web). He says that Judge Kaplan is one of the more technically knowledgable judges in the Circuit. Kaplan sits on the committee that reviews the technology used by the Circuit. OTON, it's also true that a little knowledge may be dangerous. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:10:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30501 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:10:30 -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 OAA30471 for ; Tue, 25 Jul 2000 14:10:28 -0400 Message-ID: <20000725180921.11927.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 25 Jul 2000 11:09:21 PDT Date: Tue, 25 Jul 2000 11:09:21 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! 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 17 U.S.C 109 sets out the doctrine of first sale in several parts. Specifically the following is relevant to the use of DeCSS: 109(c) "Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." Nothing in the DMCA actually conflicts with this. If Congress had intended for the "right of access" to extend past First Sale, they would have placed it in secton 106(5) or amended 109(c) appropriately. They didn't. The above shows that First Sale supports the notion that viewing purchased DVD's is not circumvention. In other words, the ability to authorize access does not extend past first sale. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:14:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA30916 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:14:32 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA30855 for ; Tue, 25 Jul 2000 14:14:18 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA12144 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:16:59 -0400 Date: Tue, 25 Jul 2000 14:16:54 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] fact on DVD player to bring in Message-ID: <20000725141654.C11953@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Tue, Jul 25, 2000 at 09:28:52AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think the DeCSS case shows, as other studies have done, that patents are seen increasingly as inadequate by those who wish to own ideas. The compliance of Congress to pass laws such as DMCA to increase protection of intellectual property is far too tempting. Patents like copyright are seen by big businesses as just another way to lock up ideas and make them into a profit stream. The best example of that is pretty outrageous: The New York Times reported Sunday I believe on the history of drug companies paying competitors not to produce generic drugs. (The law allowing generic drug companies to compete was supposed to be an answer to the proprietary drug companies' demand they be given more than the usual patent term protection.) The result has likely been that some people have died. This is not entertainment, folks, this is life or death. On Tue, Jul 25, 2000 at 09:28:52AM -0700, Michael.A.Rolenz@aero.org wrote: > > You missed my point. If it has outlived its usefulness, then it probably > isn't worth the patent or copyright fees spent on it. Somebody probably > invented something better. Also, if it has outlived its usefulness, then > it's probably not being used by even the original assignee. The licensing > fees might be dirt cheap at that time if you wanted to get them. Also, you > can't patent a mouse trap - only a better one. So design a better mouse > trap. > > The problem is not with the term of the patent. The problem with this is > that the patent office has been granting patents for out and out nonsense > these days - check out the AGI patents on STK [patents the computerized > link budget], check out the TRW patents on Odd-yssey[patents a set of > satellite orbits]. Check out the Teledesic Patents on using Ka band > antennas for non geosynchronous orbits[narrowbeam antennas don't interfere > with geosyncrhonous satellites for long]. That kind of crap should not > have been allowed to be patented. They are allowing patenting of vague, > nebulous, inventions or ideas Then arguing infringement. That is the > problem. BTWAll that happened with the TRW patents was that they found that > after spending $3B having a patent on a system was a lot easier than > building it. They fought with another company on the "infringement" and > then they traded stock. The other company is coming out of chapter 11 (or > is it chapter 13, 14?). Oh another wonderful patent - cardboard sleeves for > coffee cups, patented by starbucks. > > Rather than allowing the patent office to patent anything and then having > it enter the public domain sooner, tighten up the regulations what can be > patented and keep the term the same. > > > Phil Karn put this on his website...it's spooky. That's no typo on the > date. 1882 is correct. > > It was never the object of those laws to grant a monopoly for every > trifling device, every shadow of a shade of an idea, which would naturally > and spontaneously occur to any skilled mechanic or operator in the > ordinary progress of manufactures. Such an indiscriminate creation of > exclusive privileges tends rather to obstruct than to stimulate invention. > It creates a class of speculative schemers who make it their business to > watch the advancing wave of improvement, and gather its foam in the form > of patented monopolies, which enable them to lay a heavy tax upon the > industry of the country, without contributing anything to the real > advancement of the arts. It embarrasses the honest pursuit of business with > fears and apprehensions of concealed liens and unknown liabilities > lawsuits and vexatious accountings for profits made in good faith. > (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)). > > > > > Jim Bauer @eon.law.harvard.edu on 07/24/2000 06:20:29 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > Michael.A.Rolenz@aero.org wrote: > > > >Another argument against shortening the time is that if it does become > >obsolete by the time the patent has expired, then something has made it > >obsolete. > > To be replaced by something else that is patented. Also nowadays, > big companies get together and cross licenses their patents so they > can work together to elminate the small guys. Somehow I don't think > the founding fathers had that in mind. > > >One ironic twist on the Sonny Bono Extension Law is that in many states > >one must exercise one's property rights at least once a year or one can > >loose REAL property but intellectual property can be kept well beyond a > >lifetime without doing anything. > > Isn't it imperative for works patented or copyrighten to go into > public domain *before* they outlived they usefullness? Otherwise, > what's the point? > > -- > Jim Bauer, jfbauer@home.com > > -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 14:27:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA32401 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:27:57 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA32398 for ; Tue, 25 Jul 2000 14:27:55 -0400 Received: from ppp.anonymizer.com (c4T2-058.015.popsite.net [216.126.187.58]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA23169 for ; Tue, 25 Jul 2000 11:29:28 -0700 (PDT) Message-Id: <4.3.2.7.2.20000725112057.00aa85d0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Tue, 25 Jul 2000 11:28:26 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] "Computers for Lawyers" 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 At 11:09 AM 7/25/2000 -0700, Michael.A.Rolenz@aero.org wrote: >Committee....reviews technology.....hmmmmmmm It's actually a number of different committees, depending on what's involved. It starts with the Administrative Office of the Courts (all federal courts), overseen by the technology subcommittee of the Judicial Conference of the U.S., then flows down through various Circuit Court and District Court levels. Most of the time, it is pretty straightforward, the judges taking the recommendations of the people they hire to know such things. Sometimes, it is quite political, with backroom maneuvering, power plays, end runs, just like in the real world. I learned much of this in '98 when a quite reliable source gave me the details of how a number of federal circuits installed WebSENSE censorware without knowledge or approval of the judges. >Roy Murphy @eon.law.harvard.edu on 07/25/2000 10:38:47 AM > >Please respond to dvd-discuss@eon.law.harvard.edu > >Sent by: owner-dvd-discuss@eon.law.harvard.edu > > >To: dvd-discuss@eon.law.harvard.edu >cc: >Subject: Re: [dvd-discuss] "Computers for Lawyers" > > >Yea, verily on Tue, Jul 25, 2000 at 07:57:01AM -0700, >thus spake Michael.A.Rolenz@aero.org: > > I read it last night. You're right. He seems to be getting more computer > > literate too... > >I know someone who is a network person for the Federal courts (he was >involved in implementing the PDF system for distributing orders via >the web). He says that Judge Kaplan is one of the more technically >knowledgable judges in the Circuit. Kaplan sits on the committee that >reviews the technology used by the Circuit. > >OTON, it's also true that a little knowledge may be dangerous. > >-- >Roy Murphy \ "For a successful technology, reality must take >precedence >murphy@panix.com \ over public relations, for Nature cannot be fooled" > \ R.P. Feynman -------------------------------------------------------------------- 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 Tue Jul 25 14:59:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA03735 for dvd-discuss-outgoing; Tue, 25 Jul 2000 14:59:32 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA03644 for ; Tue, 25 Jul 2000 14:59:24 -0400 Received: by aero.org id <17132-4>; Tue, 25 Jul 2000 11:58:29 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdVAAa08888; Tue Jul 25 11:58:07 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 11:57:37 -0700 Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sansAuthorizatoin!!! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 11:57:35 AM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Tue, 25 Jul 2000 11:58:23 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA03732 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu THe phrase "viewers present at the place where the copy is located." is significant.....virtual presence over the INTERNET does NOT satisfy this requirement. Bryan Taylor @eon.law.harvard.edu on 07/25/2000 11:15:39 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! 17 U.S.C 109 sets out the doctrine of first sale in several parts. Specifically the following is relevant to the use of DeCSS: 109(c) "Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located." Nothing in the DMCA actually conflicts with this. If Congress had intended for the "right of access" to extend past First Sale, they would have placed it in secton 106(5) or amended 109(c) appropriately. They didn't. The above shows that First Sale supports the notion that viewing purchased DVD's is not circumvention. In other words, the ability to authorize access does not extend past first sale. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail ? Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:05:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA04945 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:05:41 -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 PAA04942 for ; Tue, 25 Jul 2000 15:05:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4YA>; Tue, 25 Jul 2000 12:05:14 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D3D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Tue, 25 Jul 2000 12:05:09 -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 But doesn't sale of the physical object also convey some subset of rights from the copyright owner to the buyer of the physical object? (e.g. "for home viewing only"?) -- -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: Monday, July 24, 2000 11:49 AM > To: 'dvd-discuss@eon.law.harvard.edu' > Subject: RE: [dvd-discuss] authorization > > > > Kaplan is absolutely correct. You own the physical object, > but the copyright owner owns the work. > > Its just like -- say I notice you skinny dipping in your > backyard pool. I take a picture of you doing that. As long as > I am not trespassing, the picture is legal -- you have no > expectation of privacy in that situation. However, I could > not publish the resulting picture, because even though I > own the picture, you own your image on the picture. > > I argue that: > > * reverse engineering of the CSS technical process was > fair use of whatever software / hardware was reverse > engineered. (this is not a trial issue) > > * copyright owners residual rights are limited across sale > to certain activities specified in the copyright act. > The number 106 comes to mind. > > * the only change that 1201 makes is to say that the > copyright owner may sell access to the work separately > from physical possession. It makes it illegal to > circumvent any measure put in place by the copyright > owner that permits this alternative sale/distribution model. > > * In the case of DVDs, access to the work is not sold > separately from physical possession. > > > > -----Original Message----- > > From: Ron Gustavson [mailto:rongus@tiac.net] > > Sent: Saturday, July 22, 2000 8:20 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] authorization > > > > > > But Kaplan has suggested that the buyer only buys a piece of > > plastic (let's call that polycarbonate laminated over foil.) > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:07:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05202 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:07:00 -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 PAA05199 for ; Tue, 25 Jul 2000 15:06:58 -0400 Message-ID: <20000725190527.20295.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Tue, 25 Jul 2000 12:05:27 PDT Date: Tue, 25 Jul 2000 12:05:27 -0700 (PDT) From: Bryan Taylor Subject: RE: [dvd-discuss] We've proved Reverse Engineering 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 --- Leland Ray wrote: > The lack of evidence is a real sticky thing. Nobody who originally > did the reverse engineering showed up in court to own up to it. Actually, Johansen testified he re-did the reverse engineering after the German member 'Ham' first discovered it. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:14:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA05934 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:14:19 -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 PAA05931 for ; Tue, 25 Jul 2000 15:14:17 -0400 Message-ID: <20000725191251.4635.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Tue, 25 Jul 2000 12:12:51 PDT Date: Tue, 25 Jul 2000 12:12:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sansAuthorizatoin!!! 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 --- Michael.A.Rolenz@aero.org wrote: > THe phrase > "viewers present at the place where the copy is located." > is significant.....virtual presence over the INTERNET does NOT > satisfy this requirement. I suppose that's true. Why do you mention it? DeCSS certainly doesn't involve this. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:27:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA06666 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:27:43 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA06662 for ; Tue, 25 Jul 2000 15:27:41 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Tue, 25 Jul 2000 22:25:55 +0300 Message-ID: <397F3B84.96B2A11D@easybase.com> Date: Wed, 26 Jul 2000 22:27:01 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Source code versus Object Code (executable) Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id PAA06664 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reading David S. Touretzky declaration, It seems that the failure to communicate that there is no significant difference between source code and executable code could be easily explained to the Judge in this case (and other cases) 1. if the defense would mention interpreted languages This seems to me an area that all those testifying on defense' side simply failed to mention. 2. A great demonstration would be to rewrite decss in some interpreted language such as perl, and then show a demonstration where a clear text (source code) is directly executable and is actually working in much the same way as compiled version. Although 2. would be too late for this case, it might be done on an appeal if and when that would be. Point 1. however i hope can be raised right now. Rgrds, Moshe Vainer moshev@easybase.com P.S. I hope the defense reads this, and can use it asap. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:45:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07030 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:45:47 -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 PAA07027 for ; Tue, 25 Jul 2000 15:45:46 -0400 Message-ID: <20000725194430.21244.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Tue, 25 Jul 2000 12:44:30 PDT Date: Tue, 25 Jul 2000 12:44:30 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] NY Times: Hollywood looks to kill hyperlinks in copyright fights 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.nytimes.com/cnet/CNET_0_4_2342094_00.html I guess it's actually a CNET article, but I found it at NYT. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:46:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07076 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:46:44 -0400 Received: from dial219.roadrunner.com (sf-du219.cybermesa.com [209.12.75.219]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA07070 for ; Tue, 25 Jul 2000 15:46:41 -0400 Received: (from paul@localhost) by dial219.roadrunner.com (8.8.7/8.8.7) id NAA02970 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:46:58 -0600 Date: Tue, 25 Jul 2000 13:46:57 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! Message-ID: <20000725134657.B2160@localhost> References: <20000725180921.11927.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: <20000725180921.11927.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Jul 25, 2000 at 11:09:21AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 11:09:21AM -0700, Bryan Taylor wrote: > 17 U.S.C 109 sets out the doctrine of first sale in several parts. > Specifically the following is relevant to the use of DeCSS: > > 109(c) "Notwithstanding the provisions of section 106(5), the owner of > a particular copy lawfully made under this title, or any person > authorized by such owner, is entitled, without the authority of the > copyright owner, to display that copy publicly, either directly or by > the projection of no more than one image at a time, to viewers present > at the place where the copy is located." > > Nothing in the DMCA actually conflicts with this. If Congress had > intended for the "right of access" to extend past First Sale, they > would have placed it in secton 106(5) or amended 109(c) appropriately. > They didn't. > > The above shows that First Sale supports the notion that viewing > purchased DVD's is not circumvention. In other words, the ability to > authorize access does not extend past first sale. Your last statement is necessary because most people assume the access in 1201(a) is a thing you do to the work, rather than the transaction to get the work. 1201(a) with "access" defined this way is a re-affirmation that copyright owners receive payment at "first-sale" even when the work is transmitted electronically and no copy changes hands. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:50:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07229 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:50:49 -0400 Received: from dial219.roadrunner.com (sf-du219.cybermesa.com [209.12.75.219]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA07226 for ; Tue, 25 Jul 2000 15:50:46 -0400 Received: (from paul@localhost) by dial219.roadrunner.com (8.8.7/8.8.7) id NAA02979 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:51:10 -0600 Date: Tue, 25 Jul 2000 13:51:09 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorization Message-ID: <20000725135109.C2160@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D3D@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D3D@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Jul 25, 2000 at 12:05:09PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 12:05:09PM -0700, Richard Hartman wrote: > But doesn't sale of the physical object also > convey some subset of rights from the copyright > owner to the buyer of the physical object? (e.g. > "for home viewing only"?) Home viewing is not an exclusive right, so it was never in the bundle of things the copyright is allowed to control (baring the MPAA reading of 1201(a)). The statement on the disk not a grant of a privilege, it is a tautology -- a restatement of what federal law and the constitution reserve to everyone. One might alternatively view it as an attempt to bamboozle people into not exercising their statutory right under section 109. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:54:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07764 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:54:57 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA07761 for ; Tue, 25 Jul 2000 15:54:54 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Tue, 25 Jul 2000 22:53:01 +0300 Message-ID: <397F41DE.F207C3FB@easybase.com> Date: Wed, 26 Jul 2000 22:54:06 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) References: <397F3B84.96B2A11D@easybase.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id PAA07762 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Actually, replying to myself, the demonstration would be even more easily done by wrapping the compilation, execution and the source code in a shell script. I know this is easily done on linux, i am not sure this can be easily done on windows with batch files, but i believe Visual Studio has command line equivalents of make (nmake etc...) and echo can be used inside batch file to echo the source code to a temporary c file, then compile, and run the program on each invokation of the batch file. This would effectively show that a human readable source of batch-DeCss is also readily executable, and that the distinction between source code and executable is moot. Moshe Vainer wrote: > Reading David S. Touretzky declaration, It seems that the failure to > communicate that there is no significant difference between source code and > executable code could be easily explained to the Judge in this case (and other cases) > 1. if the defense would mention > interpreted languages > This seems to me an area that all those testifying on defense' side simply failed to > mention. > > 2. A great demonstration would be to rewrite decss in some interpreted language such as > perl, > and then show a demonstration where a clear text (source code) is directly executable and > is actually working in much the same way as compiled version. > > Although 2. would be too late for this case, it might be done on an appeal if and when > that would be. > Point 1. however i hope can be raised right now. > > Rgrds, > Moshe Vainer > moshev@easybase.com > > P.S. I hope the defense reads this, and can use it asap. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 15:55:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA07850 for dvd-discuss-outgoing; Tue, 25 Jul 2000 15:55:25 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA07827 for ; Tue, 25 Jul 2000 15:55:17 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id OAA09208 for ; Tue, 25 Jul 2000 14:54:39 -0500 (CDT) Message-ID: <397DF04B.DD6348E6@uic.edu> Date: Tue, 25 Jul 2000 14:53:47 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] NY Times: Hollywood looks to kill hyperlinks in copyright fights 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 >From the article at: http://www.nytimes.com/cnet/CNET_0_4_2342094_00.html > The Motion Picture Association of America (MPAA) is also suing 2600 > Enterprises and its publisher, Eric Corley, to keep the publication from posting > the source code for a software program, DeCSS, which allows DVDs to be > played with the Linux computer operating system. The MPAA contends that > this program facilitates copying of DVDs and therefore is a piracy tool, a claim > the program's author and his supporters vehemently contest. One of the few stories so far that isn't just a paraphrase of an MPAA press release! From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 16:13:30 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09555 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:13:30 -0400 Received: from dial144.roadrunner.com (sf-du144.cybermesa.com [209.12.75.144]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09552 for ; Tue, 25 Jul 2000 16:13:27 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id OAA03272 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:13:47 -0600 Date: Tue, 25 Jul 2000 14:13:47 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The Register trial article Message-ID: <20000725141346.A2991@localhost> References: <20000725155025.19501.qmail@web514.mail.yahoo.com> <20000725140839.B11953@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000725140839.B11953@eldritchpress.org>; from eldred@eldritchpress.org on Tue, Jul 25, 2000 at 02:08:39PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 02:08:39PM -0400, Eric Eldred wrote: > On Tue, Jul 25, 2000 at 08:50:25AM -0700, Bryan Taylor wrote: > > > > http://www.theregister.co.uk/content/1/12148.html > > "as every rocket scientist and his > lowbrow deaf-mute assistant well knows. " > > I resent this casting decision. I would cast the > rocket scientist as Dr Honeydew and his assistant > as Beaker. > > Otherwise a pretty good article, thanks. Another ticklish spot in the DMCA is its internal inconsistency in making it illegal to defeat a technical access control meant to protect copyrighted material while at the same time declaring that nothing in the Act may be construed to impede Fair Use of the protected material. The real ticklish spot is the circular reference to "access". If that circular dependence is resolved by defining access as the commercial transaction to get the work rather than getting the plaintext, then there is no conflict between 1201(a) and 1201(c). This wholesale repeal of fair and non-copyright use *and* a host of other problems evaporate if access is a commercial transaction, rather than getting the plaintext. There might be some residual dirt in the evaporation chamber: it isn't clear to me that the law has to operate with the authority of the copyright owner, so _perhaps_ we're left with one problem. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 16:24:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09730 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:24:02 -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 QAA09726 for ; Tue, 25 Jul 2000 16:23:58 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4YW>; Tue, 25 Jul 2000 13:23:36 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D3E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Authority to decode CSS does not come from Warn er! Date: Tue, 25 Jul 2000 13:23:29 -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 > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Monday, July 24, 2000 2:47 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Authority to decode CSS does not come from > Warner! > > > Why are people obsessed with this? It's totally weak. It's is objectively weak ... but it goes to the heart of the plaintiff's arguments. > > 1201(a)(1) is not effective yet. Shamos used an unlicenced > player. This > is still legal until October. Shamos did not distribute any player, as > the MPAA argues would be prohibited by 1201(a)(2). > > Shamos did not comit simple copyright infringement because he had > authorization. >From whom? Warner has stated that they can not give authorization to play their own works on an unlicensed player. >Because of the relevence to a trial, it is > probably fair > use anyway. > Again, if the P's model holds, "fair use" is out the window entirely. -- -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 Jul 25 16:27:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09834 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:27:51 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09831 for ; Tue, 25 Jul 2000 16:27:45 -0400 Received: by aero.org id <17116-7>; Tue, 25 Jul 2000 13:27:05 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGOAa10389; Tue Jul 25 13:26:52 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:26:27 -0700 Subject: Re: [dvd-discuss] fact on DVD player to bring in To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 01:26:24 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 13:27:02 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Well...one symptom is the words we use "intellectual property"-that's something oxymoronic. Nobody owns ideas. They only have limited rights to them.(see Thomas Jefferson's writing on this.)....this problem will not go away whatever the outcome of the case and will need continuing work. Eric Eldred @eon.law.harvard.edu on 07/25/2000 11:15:26 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] fact on DVD player to bring in I think the DeCSS case shows, as other studies have done, that patents are seen increasingly as inadequate by those who wish to own ideas. The compliance of Congress to pass laws such as DMCA to increase protection of intellectual property is far too tempting. Patents like copyright are seen by big businesses as just another way to lock up ideas and make them into a profit stream. The best example of that is pretty outrageous: The New York Times reported Sunday I believe on the history of drug companies paying competitors not to produce generic drugs. (The law allowing generic drug companies to compete was supposed to be an answer to the proprietary drug companies' demand they be given more than the usual patent term protection.) The result has likely been that some people have died. This is not entertainment, folks, this is life or death. On Tue, Jul 25, 2000 at 09:28:52AM -0700, Michael.A.Rolenz@aero.org wrote: > > You missed my point. If it has outlived its usefulness, then it probably > isn't worth the patent or copyright fees spent on it. Somebody probably > invented something better. Also, if it has outlived its usefulness, then > it's probably not being used by even the original assignee. The licensing > fees might be dirt cheap at that time if you wanted to get them. Also, you > can't patent a mouse trap - only a better one. So design a better mouse > trap. > > The problem is not with the term of the patent. The problem with this is > that the patent office has been granting patents for out and out nonsense > these days - check out the AGI patents on STK [patents the computerized > link budget], check out the TRW patents on Odd-yssey[patents a set of > satellite orbits]. Check out the Teledesic Patents on using Ka band > antennas for non geosynchronous orbits[narrowbeam antennas don't interfere > with geosyncrhonous satellites for long]. That kind of crap should not > have been allowed to be patented. They are allowing patenting of vague, > nebulous, inventions or ideas Then arguing infringement. That is the > problem. BTWAll that happened with the TRW patents was that they found that > after spending $3B having a patent on a system was a lot easier than > building it. They fought with another company on the "infringement" and > then they traded stock. The other company is coming out of chapter 11 (or > is it chapter 13, 14?). Oh another wonderful patent - cardboard sleeves for > coffee cups, patented by starbucks. > > Rather than allowing the patent office to patent anything and then having > it enter the public domain sooner, tighten up the regulations what can be > patented and keep the term the same. > > > Phil Karn put this on his website...it's spooky. That's no typo on the > date. 1882 is correct. > > It was never the object of those laws to grant a monopoly for every > trifling device, every shadow of a shade of an idea, which would naturally > and spontaneously occur to any skilled mechanic or operator in the > ordinary progress of manufactures. Such an indiscriminate creation of > exclusive privileges tends rather to obstruct than to stimulate invention. > It creates a class of speculative schemers who make it their business to > watch the advancing wave of improvement, and gather its foam in the form > of patented monopolies, which enable them to lay a heavy tax upon the > industry of the country, without contributing anything to the real > advancement of the arts. It embarrasses the honest pursuit of business with > fears and apprehensions of concealed liens and unknown liabilities > lawsuits and vexatious accountings for profits made in good faith. > (Atlantic Works v. Brady, 1017 U.S. 192, 200 (1882)). > > > > > Jim Bauer @eon.law.harvard.edu on 07/24/2000 06:20:29 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: Re: [dvd-discuss] fact on DVD player to bring in > > > Michael.A.Rolenz@aero.org wrote: > > > >Another argument against shortening the time is that if it does become > >obsolete by the time the patent has expired, then something has made it > >obsolete. > > To be replaced by something else that is patented. Also nowadays, > big companies get together and cross licenses their patents so they > can work together to elminate the small guys. Somehow I don't think > the founding fathers had that in mind. > > >One ironic twist on the Sonny Bono Extension Law is that in many states > >one must exercise one's property rights at least once a year or one can > >loose REAL property but intellectual property can be kept well beyond a > >lifetime without doing anything. > > Isn't it imperative for works patented or copyrighten to go into > public domain *before* they outlived they usefullness? Otherwise, > what's the point? > > -- > Jim Bauer, jfbauer@home.com > > -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 16:30:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09874 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:30:29 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA09871 for ; Tue, 25 Jul 2000 16:30:25 -0400 Received: by aero.org id <17110-3>; Tue, 25 Jul 2000 13:29:42 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdWOAa10389; Tue Jul 25 13:29:32 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:29:18 -0700 Subject: Re: [dvd-discuss] "Computers for Lawyers" To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 01:29:17 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 13:29:38 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's what you have to love about science. With the creation of thermodynamics we began to understand the concepts of work, useful work, and entrophy. In the 20th century, we started to apply some of it to understanding beaurocracies. "James S. Tyre" @eon.law.harvard.edu on 07/25/2000 11:28:47 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] "Computers for Lawyers" At 11:09 AM 7/25/2000 -0700, Michael.A.Rolenz@aero.org wrote: >Committee....reviews technology.....hmmmmmmm It's actually a number of different committees, depending on what's involved. It starts with the Administrative Office of the Courts (all federal courts), overseen by the technology subcommittee of the Judicial Conference of the U.S., then flows down through various Circuit Court and District Court levels. Most of the time, it is pretty straightforward, the judges taking the recommendations of the people they hire to know such things. Sometimes, it is quite political, with backroom maneuvering, power plays, end runs, just like in the real world. I learned much of this in '98 when a quite reliable source gave me the details of how a number of federal circuits installed WebSENSE censorware without knowledge or approval of the judges. >Roy Murphy @eon.law.harvard.edu on 07/25/2000 10:38:47 AM > >Please respond to dvd-discuss@eon.law.harvard.edu > >Sent by: owner-dvd-discuss@eon.law.harvard.edu > > >To: dvd-discuss@eon.law.harvard.edu >cc: >Subject: Re: [dvd-discuss] "Computers for Lawyers" > > >Yea, verily on Tue, Jul 25, 2000 at 07:57:01AM -0700, >thus spake Michael.A.Rolenz@aero.org: > > I read it last night. You're right. He seems to be getting more computer > > literate too... > >I know someone who is a network person for the Federal courts (he was >involved in implementing the PDF system for distributing orders via >the web). He says that Judge Kaplan is one of the more technically >knowledgable judges in the Circuit. Kaplan sits on the committee that >reviews the technology used by the Circuit. > >OTON, it's also true that a little knowledge may be dangerous. > >-- >Roy Murphy \ "For a successful technology, reality must take >precedence >murphy@panix.com \ over public relations, for Nature cannot be fooled" > \ R.P. Feynman -------------------------------------------------------------------- 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 Tue Jul 25 16:31:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA09932 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:31:53 -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 QAA09929 for ; Tue, 25 Jul 2000 16:31:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4Y5>; Tue, 25 Jul 2000 13:31:27 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D3F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sansA uthorizatoin!!! Date: Tue, 25 Jul 2000 13:31:24 -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: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > Sent: Tuesday, July 25, 2000 11:58 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing > sansAuthorizatoin!!! > > > > THe phrase > > "viewers present at the place where the copy is located." > > is significant.....virtual presence over the INTERNET does > NOT satisfy this > requirement. > > > > > Bryan Taylor @eon.law.harvard.edu > on 07/25/2000 > 11:15:39 AM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans > Authorizatoin!!! > > > 17 U.S.C 109 sets out the doctrine of first sale in several parts. > Specifically the following is relevant to the use of DeCSS: > > 109(c) "Notwithstanding the provisions of section 106(5), the owner of > a particular copy lawfully made under this title, or any person > authorized by such owner, is entitled, without the authority of the > copyright owner, to display that copy publicly, either directly or by > the projection of no more than one image at a time, to viewers present > at the place where the copy is located." Which means that the person who bought the "polycarbonate disc" that Judge K puts so much emphasis on -does- explicitly have certain rights to access the work -- rights that are -not- limited as to means of access. -- -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 Jul 25 16:37:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10006 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:37:24 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10003 for ; Tue, 25 Jul 2000 16:37:19 -0400 Received: by aero.org id <17099-3>; Tue, 25 Jul 2000 13:36:34 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQQAa10389; Tue Jul 25 13:36:24 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:35:51 -0700 Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows ViewingsansAuthorizatoin!!! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 01:35:49 PM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Tue, 25 Jul 2000 13:36:33 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id QAA10004 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Correct. It is NOT the issue. But then has the MPAA ever come out with the REAL issue. They've given us horror stories, boogymen, and maybe someone might someday someplace somehow.....do something BAD "O V E R T H E I N T E R N E T".... This seems to be their strongest card yet it isn't been played yet, although the defense team has been messing up its play. Bryan Taylor @eon.law.harvard.edu on 07/25/2000 12:15:19 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sansAuthorizatoin!!! --- Michael.A.Rolenz@aero.org wrote: > THe phrase > "viewers present at the place where the copy is located." > is significant.....virtual presence over the INTERNET does NOT > satisfy this requirement. I suppose that's true. Why do you mention it? DeCSS certainly doesn't involve this. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail ? Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 16:42:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10199 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:42:40 -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 QAA10196 for ; Tue, 25 Jul 2000 16:42:39 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4Y0>; Tue, 25 Jul 2000 13:42:17 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D40@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Tue, 25 Jul 2000 13:42:10 -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, July 25, 2000 12:51 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > On Tue, Jul 25, 2000 at 12:05:09PM -0700, Richard Hartman wrote: > > But doesn't sale of the physical object also > > convey some subset of rights from the copyright > > owner to the buyer of the physical object? (e.g. > > "for home viewing only"?) > > Home viewing is not an exclusive right, so it was never in the > bundle of things the copyright is allowed to control (baring the > MPAA reading of 1201(a)). The statement on the disk not a grant > of a privilege, it is a tautology -- a restatement of what federal > law and the constitution reserve to everyone. > > One might alternatively view it as an attempt to bamboozle people > into not exercising their statutory right under section 109. > Somebody posted some excerpts from 109 recently, and it looks exactly as if ownership of the physical object grants certain rights irrespective of the desires of the copyright owner. -- -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 Jul 25 16:57:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10530 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:57:13 -0400 Received: from dial200.roadrunner.com (sf-du200.cybermesa.com [209.12.75.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA10527 for ; Tue, 25 Jul 2000 16:57:10 -0400 Received: (from paul@localhost) by dial200.roadrunner.com (8.8.7/8.8.7) id OAA03686 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:57:31 -0600 Date: Tue, 25 Jul 2000 14:57:30 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorization Message-ID: <20000725145729.A3559@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D40@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D40@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Jul 25, 2000 at 01:42:10PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 01:42:10PM -0700, Richard Hartman wrote: > > > > -----Original Message----- > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > > Sent: Tuesday, July 25, 2000 12:51 PM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] authorization > > > > > > On Tue, Jul 25, 2000 at 12:05:09PM -0700, Richard Hartman wrote: > > > But doesn't sale of the physical object also > > > convey some subset of rights from the copyright > > > owner to the buyer of the physical object? (e.g. > > > "for home viewing only"?) > > > > Home viewing is not an exclusive right, so it was never in the > > bundle of things the copyright is allowed to control (baring the > > MPAA reading of 1201(a)). The statement on the disk not a grant > > of a privilege, it is a tautology -- a restatement of what federal > > law and the constitution reserve to everyone. > > > > One might alternatively view it as an attempt to bamboozle people > > into not exercising their statutory right under section 109. > > > > Somebody posted some excerpts from 109 recently, and it looks > exactly as if ownership of the physical object grants certain > rights irrespective of the desires of the copyright owner. Yeah. I think we're at cross purposes. As you note, a right to public performance conveys with ownership of the legal copy. My point was that the right to private performance after publication doesn't convey. Private performance isn't part of 106, so we always have that use as a right. Hopefully, private performance is beyond the reach of statute for constitutional reasons. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 16:59:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10652 for dvd-discuss-outgoing; Tue, 25 Jul 2000 16:59:50 -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 QAA10645 for ; Tue, 25 Jul 2000 16:59:49 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C4ZC>; Tue, 25 Jul 2000 13:59:27 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D41@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Date: Tue, 25 Jul 2000 13:59:19 -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 Actually, Paul, it's not the browser that does the magic with the URLs ending in "/", it is the server. The browser sends the URL as typed and the server fills in the default file to use when none has been specified. Other than that, your nitpicking here is on the mark -- -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: Tuesday, July 25, 2000 9:19 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname > > > On Tue, Jul 25, 2000 at 09:36:34AM -0600, Paul Fenimore wrote: > > Day 5, p. 850: > > > > 3 THE COURT: That's the page you get if you enter the > > 4 universal resource locator www.2600.com into your browser, > > 5 true? > > > > > > False. www.2600.com is a hostname, not a uniform resource locator. A > > URL is URL is URL is URL. > > > > http://www.2600.com/ is a URL. > > To avoid misunderstanding, and the thought that I'm nit-picking: > the terminal slash specifies a directory, the root directory. > > Many web servers are configured to do something with a "magic" file > name in the root directory, and present it as the "home page", > *even if the user fails to specify the file by name*. > > This is not a property of URLs or HTTP, it is a property of a > web browser and its configuration files. > > Absence of the terminal slash in this case is ambiguous: more > than one user, organization or "web site" _could_ be present on the > machine. Some web browsers are configured to "do sensible things" > when the URL fails to specify a file. > > All of this is a convenience for people who don't want to know > the details of a web "site". Inferring that there is something > inherent to HTML or human communication in making it this > way is wrong. It is done that way so that people accustomed to books > don't get frustrated. > > > Paul Fenimore > From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:09:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11075 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:09:43 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11072 for ; Tue, 25 Jul 2000 17:09:41 -0400 Received: by aero.org id <17094-3>; Tue, 25 Jul 2000 14:08:56 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdRVAa10389; Tue Jul 25 14:08:47 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 13:56:59 -0700 Subject: RE: [dvd-discuss] Authority to decode CSS does not come from Warner! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 01:56:58 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 14:08:54 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If they didn't give it to him before, they can give it to him afterwards or he can argue that in his employ as their agent he had authority or they can not even bother filing suit against Shamos like they haven't against the other 30,000 (kaplans 29,999 + 1 shamos) Richard Hartman @eon.law.harvard.edu on 07/25/2000 01:25:21 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] Authority to decode CSS does not come from Warner! > -----Original Message----- > From: Bryan Taylor [mailto:bryan_w_taylor@yahoo.com] > Sent: Monday, July 24, 2000 2:47 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Authority to decode CSS does not come from > Warner! > > > Why are people obsessed with this? It's totally weak. It's is objectively weak ... but it goes to the heart of the plaintiff's arguments. > > 1201(a)(1) is not effective yet. Shamos used an unlicenced > player. This > is still legal until October. Shamos did not distribute any player, as > the MPAA argues would be prohibited by 1201(a)(2). > > Shamos did not comit simple copyright infringement because he had > authorization. >From whom? Warner has stated that they can not give authorization to play their own works on an unlicensed player. >Because of the relevence to a trial, it is > probably fair > use anyway. > Again, if the P's model holds, "fair use" is out the window entirely. -- -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 Jul 25 17:10:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11137 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:10:44 -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 RAA11133 for ; Tue, 25 Jul 2000 17:10:42 -0400 Message-ID: <20000725210935.22804.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Tue, 25 Jul 2000 14:09:35 PDT Date: Tue, 25 Jul 2000 14:09:35 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Civil Remedies 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 Chapter 1203 covers possible civil remedies. If Kaplan follows 1203(b)(1) he cant do any "prior restraint" of the press. Plaintiffs have stipulated that they can't prove any actual damages. They might ask for statutory damages and "reasonable attourneys fees". Statutory damages if granted can range from $200 to $2500 [1203(c)(3)(A)]. Attourneys fees are at the discretion of the judge. Typically, attourneys fees for plaintiffs are 40% of the judgement, but this case isn't typical (I'm sure Plaintiffs are on commission). If this is also "reasonable attourney's" fees under the law, then 2600 is looking at $1000 (.4 * $2500) max in attourneys fees. It would be funny if Kaplan ordered the minimum of $200 + $80 attorneys fees. "Here Gold, you were worth $80". However, there is a "innocent violater" clause [1203(c)(5)(A)] that allows the judge to waive damages when the violater can prove it was "not aware and had no reason to believe that its acts constituted a violation". One interesting possibility is provided by 1203(b)(6) that allows the judge to order "remedial modification" of the device. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:11:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11175 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:11:14 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11170 for ; Tue, 25 Jul 2000 17:11:12 -0400 Received: by aero.org id <17145-6>; Tue, 25 Jul 2000 14:10:10 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdEWAa10389; Tue Jul 25 14:09:13 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:00:00 -0700 Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows ViewingsansAuthorizatoin!!! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 01:59:59 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 14:09:21 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu MPAA's argument is that the authority of the copyright is in the authorization of the player. That's PBS. It's also not common law. Before the DVD, the authority of the copyright always passed during the first sale....in some ways the whole sale of DVDs is fraudulant if that's their argument. Richard Hartman @eon.law.harvard.edu on 07/25/2000 01:32:56 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sansAuthorizatoin!!! > -----Original Message----- > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > Sent: Tuesday, July 25, 2000 11:58 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing > sansAuthorizatoin!!! > > > > THe phrase > > "viewers present at the place where the copy is located." > > is significant.....virtual presence over the INTERNET does > NOT satisfy this > requirement. > > > > > Bryan Taylor @eon.law.harvard.edu > on 07/25/2000 > 11:15:39 AM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans > Authorizatoin!!! > > > 17 U.S.C 109 sets out the doctrine of first sale in several parts. > Specifically the following is relevant to the use of DeCSS: > > 109(c) "Notwithstanding the provisions of section 106(5), the owner of > a particular copy lawfully made under this title, or any person > authorized by such owner, is entitled, without the authority of the > copyright owner, to display that copy publicly, either directly or by > the projection of no more than one image at a time, to viewers present > at the place where the copy is located." Which means that the person who bought the "polycarbonate disc" that Judge K puts so much emphasis on -does- explicitly have certain rights to access the work -- rights that are -not- limited as to means of access. -- -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 Jul 25 17:14:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11288 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:14:38 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11285 for ; Tue, 25 Jul 2000 17:14:36 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id OAA30347 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:24:42 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows ViewingsansAuthorizatoin!!! Date: Tue, 25 Jul 2000 14:24:25 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0007251424390Y.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu What does the Public Broadcasting System have to do with this? ;-) --Russell On Tue, 25 Jul 2000, you wrote: > MPAA's argument is that the authority of the copyright is in the > authorization of the player. That's PBS. It's also not common law. Before > the DVD, the authority of the copyright always passed during the first > sale....in some ways the whole sale of DVDs is fraudulant if that's their > argument. > > > > > Richard Hartman @eon.law.harvard.edu on 07/25/2000 > 01:32:56 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: "'dvd-discuss@eon.law.harvard.edu'" > cc: > Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing > sansAuthorizatoin!!! > > > > > -----Original Message----- > > From: Michael.A.Rolenz@aero.org [mailto:Michael.A.Rolenz@aero.org] > > Sent: Tuesday, July 25, 2000 11:58 AM > > To: dvd-discuss@eon.law.harvard.edu > > Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing > > sansAuthorizatoin!!! > > > > > > > > THe phrase > > > > "viewers present at the place where the copy is located." > > > > is significant.....virtual presence over the INTERNET does > > NOT satisfy this > > requirement. > > > > > > > > > > Bryan Taylor @eon.law.harvard.edu > > on 07/25/2000 > > 11:15:39 AM > > > > Please respond to dvd-discuss@eon.law.harvard.edu > > > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > > > > To: dvd-discuss@eon.law.harvard.edu > > cc: > > Subject: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans > > Authorizatoin!!! > > > > > > 17 U.S.C 109 sets out the doctrine of first sale in several parts. > > Specifically the following is relevant to the use of DeCSS: > > > > 109(c) "Notwithstanding the provisions of section 106(5), the owner of > > a particular copy lawfully made under this title, or any person > > authorized by such owner, is entitled, without the authority of the > > copyright owner, to display that copy publicly, either directly or by > > the projection of no more than one image at a time, to viewers present > > at the place where the copy is located." > > Which means that the person who bought the "polycarbonate disc" that > Judge K puts so much emphasis on -does- explicitly have certain rights > to access the work -- rights that are -not- limited as to means of access. > > > > > > -- > -Richard M. Hartman > hartman@onetouch.com > > 186,000 mi./sec ... not just a good idea, it's the LAW! -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:28:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11438 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:28:56 -0400 Received: from dial74.roadrunner.com (sf-du74.cybermesa.com [209.12.75.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11435 for ; Tue, 25 Jul 2000 17:28:53 -0400 Received: (from paul@localhost) by dial74.roadrunner.com (8.8.7/8.8.7) id PAA03869 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 15:29:18 -0600 Date: Tue, 25 Jul 2000 15:29:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] In evidence yet? Copying and CSS. Message-ID: <20000725152916.A3759@localhost> References: <20000724213209.1126.qmail@web514.mail.yahoo.com> <20000724225921.K10510@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000724225921.K10510@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Jul 24, 2000 at 10:59:21PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >From day 5, page 969: 25 Q. Paragraph 13 you state, "At the same time, other tools for p. 970 1 copying movies from DVDs such as DVD Rip (a program that 2 intercepts the decrypted DVD data stream and creates a freely 3 copiable data file) and Power Ripper are widely available and 4 were for months prior to the release of DeCSS. Additionally, 5 they are the tools used when digital-to-digital (for instance 6 DVD to VCD) copies are made from DVDs, because they are much 7 easier to use than DeCSS." 8 Have I just accurately read paragraph 13 of your 9 declaration? 10 THE COURT: You don't have to ask that question. 11 It's right in front of us. Next question, please. 12 A. Yes. 13 Q. Did you write this paragraph of your declaration? 14 A. Yes. 15 Q. But you had actually never used either one of these 16 rippers -- 17 A. No. So does this mean that we don't have a demonstration of copying divorced from descrambling in evidence? Useful facts, the following exist and work: 1. DOD, DVD rip, etc. (copying after descrambling, not after circumvention). 2. Hong Kong-style copying. (copying before descrambling, whether circumvention or not). Does someone know conclusively that these are in evidence? Paul Fenimore On Mon, Jul 24, 2000 at 10:59:21PM -0400, Eric Eldred wrote: > On Mon, Jul 24, 2000 at 02:32:09PM -0700, Bryan Taylor wrote: [ ... ] > > Mathematically, copying produces the identity function among works. The > > identity function commutes with anything, so the diagram is commutative > > regardless of the actual decryption function. That is, under function > > composition for any decryption: > > copying o decryption = decryption o copying = decryption > > > > In fact, for a given player, disc and title key, you can form an > > abelian group {decryption^n : n an integer} of string functions under > > composition that is isomorphic to the integers. If you don't understand > > what I just said, forget it, it's not important. > > Yes, but don't forget that the only "copying" that > anybody has been able to demonstrate here is from > Shamos, and that was not bit-for-bit copying, but > rather copying of a file that had gone through > lossy compression. In that case, it's not the > identity function you refer to. Kaplan might be > sent off the right track by the testimony that the > Windows DeCSS function included some copying > ability to start with, to the hard drive. The > copies made subsequently have nothing to do with > DeCSS, but Kaplan evidently thinks so. So it has > to go in the record more clearly. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:39:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12202 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:39:38 -0400 Received: from dial159.roadrunner.com (sf-du159.cybermesa.com [209.12.75.159]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12199 for ; Tue, 25 Jul 2000 17:39:35 -0400 Received: (from paul@localhost) by dial159.roadrunner.com (8.8.7/8.8.7) id PAA04014 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 15:40:00 -0600 Date: Tue, 25 Jul 2000 15:39:59 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 5, p.850, url vs. hostname Message-ID: <20000725153958.A3876@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D41@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D41@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Jul 25, 2000 at 01:59:19PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 01:59:19PM -0700, Richard Hartman wrote: > Actually, Paul, it's not the browser that does the magic > with the URLs ending in "/", it is the server. The browser > sends the URL as typed and the server fills in the default > file to use when none has been specified. Oops. > > To avoid misunderstanding, and the thought that I'm nit-picking: > > the terminal slash specifies a directory, the root directory. > > > > Many web servers are configured to do something with a "magic" file ^^^^^^^ > > name in the root directory, and present it as the "home page", > > *even if the user fails to specify the file by name*. > > > > This is not a property of URLs or HTTP, it is a property of a > > web browser and its configuration files. ^^^^^^^ Doh. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:56:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12579 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:56:18 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12576 for ; Tue, 25 Jul 2000 17:56:16 -0400 Received: by aero.org id <17129-2>; Tue, 25 Jul 2000 14:55:22 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKCBa10389; Tue Jul 25 14:55:11 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 14:33:32 -0700 Subject: Re: [dvd-discuss] Civil Remedies To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 02:33:30 PM MIME-Version: 1.0 Content-type: text/plain; charset=iso-8859-1 Date: Tue, 25 Jul 2000 14:55:19 -0700 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id RAA12577 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "remedial modification" of DeCSS...now that's an interesting idea.....how about requiring that any future postings of DeCSS be in Cobol? Bryan Taylor @eon.law.harvard.edu on 07/25/2000 02:11:24 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Civil Remedies Chapter 1203 covers possible civil remedies. If Kaplan follows 1203(b)(1) he cant do any "prior restraint" of the press. Plaintiffs have stipulated that they can't prove any actual damages. They might ask for statutory damages and "reasonable attourneys fees". Statutory damages if granted can range from $200 to $2500 [1203(c)(3)(A)]. Attourneys fees are at the discretion of the judge. Typically, attourneys fees for plaintiffs are 40% of the judgement, but this case isn't typical (I'm sure Plaintiffs are on commission). If this is also "reasonable attourney's" fees under the law, then 2600 is looking at $1000 (.4 * $2500) max in attourneys fees. It would be funny if Kaplan ordered the minimum of $200 + $80 attorneys fees. "Here Gold, you were worth $80". However, there is a "innocent violater" clause [1203(c)(5)(A)] that allows the judge to waive damages when the violater can prove it was "not aware and had no reason to believe that its acts constituted a violation". One interesting possibility is provided by 1203(b)(6) that allows the judge to order "remedial modification" of the device. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail ? Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 17:59:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12682 for dvd-discuss-outgoing; Tue, 25 Jul 2000 17:59:31 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12679 for ; Tue, 25 Jul 2000 17:59:30 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id PAA11070 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 15:09:36 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Civil Remedies Date: Tue, 25 Jul 2000 15:09:10 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <00072515093511.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Somehow in an open source project like this where copies are distrbuted all over the place I don't think that would have much meaning at all. --james (Russell) On Tue, 25 Jul 2000, you wrote: > "remedial modification" of DeCSS...now that's an interesting idea.....how > about requiring that any future postings of DeCSS be in Cobol? > > > > > Bryan Taylor @eon.law.harvard.edu on 07/25/2000 > 02:11:24 PM > > Please respond to dvd-discuss@eon.law.harvard.edu > > Sent by: owner-dvd-discuss@eon.law.harvard.edu > > > To: dvd-discuss@eon.law.harvard.edu > cc: > Subject: [dvd-discuss] Civil Remedies > > > Chapter 1203 covers possible civil remedies. > > If Kaplan follows 1203(b)(1) he cant do any "prior restraint" of the > press. > > Plaintiffs have stipulated that they can't prove any actual damages. > > They might ask for statutory damages and "reasonable attourneys fees". > Statutory damages if granted can range from $200 to $2500 > [1203(c)(3)(A)]. Attourneys fees are at the discretion of the judge. > > Typically, attourneys fees for plaintiffs are 40% of the judgement, but > this case isn't typical (I'm sure Plaintiffs are on commission). If > this is also "reasonable attourney's" fees under the law, then 2600 is > looking at $1000 (.4 * $2500) max in attourneys fees. It would be funny > if Kaplan ordered the minimum of $200 + $80 attorneys fees. "Here Gold, > you were worth $80". > > However, there is a "innocent violater" clause [1203(c)(5)(A)] that > allows the judge to waive damages when the violater can prove it was > "not aware and had no reason to believe that its acts constituted a > violation". > > One interesting possibility is provided by 1203(b)(6) that allows the > judge to order "remedial modification" of the device. > > __________________________________________________ > Do You Yahoo!? > Get Yahoo! Mail ? Free email you can access from anywhere! > http://mail.yahoo.com/ -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 18:53:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16427 for dvd-discuss-outgoing; Tue, 25 Jul 2000 18:53:13 -0400 Received: from dial155.roadrunner.com (sf-du155.cybermesa.com [209.12.75.155]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16424 for ; Tue, 25 Jul 2000 18:53:05 -0400 Received: (from paul@localhost) by dial155.roadrunner.com (8.8.7/8.8.7) id QAA04310 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 16:53:32 -0600 Date: Tue, 25 Jul 2000 16:53:31 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p. 3-5 Message-ID: <20000725165331.A4026@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 problems with Gold's opening statements go on and on, so I picked an arbitrary cut-off and quit commenting. This still works out to be pretty long. Day 1, p.3: 10 MR GOLD: My name is still Leon Gold. I'm a partner 11 at Proskauer Rose and I represent the motion picture studio 12 plaintiffs. 13 In 1998, Congress recognized the ease with which 14 digital copyrighted works such as movies and records could be 15 copied and distributed worldwide virtually instantaneously via 16 the Internet subjecting copyright owners to losses of material 17 portions of the value of their copyrights virtually overnight. The relevant point for rapid dissemination is electronic transmission. The digital aspect is the basis for the "no generational loss" argument. Get your arguments straight Mr. Gold. The final part of the sentence doesn't follow from the first part. Loss of value requires loss of market for the copyright holder. That requires a distribution mechanism that matches works to an audience. "The Internet" is not some magic pixie dust you invoke to avoid fleshing out an argument. "The Internet" does not automatically provide a way to find what you want. 18 Congress determined that sound copyright economic and 19 Internet policy dictated that this risk of loss had to be 20 addressed. Congress then provided that extra protection over 21 and above existing copyright laws that were needed for the 22 works since disastrous harm could occur well before any Court 23 could act under the copyright laws, well before plaintiffs 24 could get injunctions for infringement or copyright or for 25 contributor infringement. I was sort of hoping that the premature millenium celebrations would cure people of their apocalytic ravings, but alas, I am wrong in this matter. p. 4 1 The anticircumvention law was passed as a result. 2 Defendants and their supporters disagree with Congress' 3 findings and with the anticircumvention law. They believe the 4 interests of a free Internet, of free access to digital copies 5 of movies, records and books deserve more respect and more 6 attention than protection of copyrighted artistic work. Mr. Gold, you flunk listening 101. A big, fat F. What Congress did has problems, but your representations of the statute are the real issue here. The issue isn't "free" access (i.e. gratis), it is whether fair and non-copyright use of a purchased work is allowed, or if they are at the pleasure of the MPAA, even after their member corporations have been paid. 7 They believe in the right to take this work without 8 any permission, but no one has the right to steal another 9 person's copyright to steal their intellectual property and 10 Congress may provide and has provided additional protection 11 for intellectual property when new technology has 12 substantially increased the risks of infringement. Mr. Gold the entire history of copyright has been in the environment of constantly improving processes and devices for the reproduction of works. Copyright has faced no such technological crisis in the past, yet we are to believe that the natural progression of technology has, just in time for this lawsuit, reached a critical point. More than bald assertion is necessary to support such an extraordinary claim. To the contrary, electronic transmission of books has been possible for well over a decade as demonstrated by Project Gutenberg. Yet the traditional ink-on-paper publishing business has not collapsed in a flaming, apocalyptic ruin. And we are to believe that destruction awaits the movie industry based on your unsupported, afactual claims? I will grant you one new aspect to modern technology --- no copy need change hands at the sale of a work. Thus the copy need no longer be a token that changes hands simultaneously with payment to the copyright owner. This does suggest that transmitted works (and only transmitted works) be scrambled at first-sale when sent on a public network. 13 We note this is not the appropriate forum for the 14 expression of defendant's beliefs about effective social, 15 economic and Internet policy. Congress has decided and we 16 respectfully submit the Courts must act promptly to protect 17 these interests in the manner that Congress intended. Not to 18 do so eliminates the purposes, eliminates the existence truly 19 of the act in question. No, it doesn't eliminate the act. It eliminates your lawsuit, a radically different proposition. The statute still has meaning as enabling legislation for the electronic distribution of works. 20 In the anticircumvention law Congress provided that 21 owners of copyright digital materials could protect their work 23 access to their copyrighted works. Congress provided that if 24 copyright owners protected their works with such measures, 25 circumvention devices could not be offered or trafficked to Go ahead Mr. Gold, define "access" for me. You seem to think it is a simple and obvious idea. That should make it easy to explain. Humor me. Provide some illumination. Programs are not devices. Computers are devices. Programs are instructions directing the operation of a device. The word from the statute you are looking for is "product", see 17 U.S.C. 1201(a)(2): "any technology, product, service, device, component, or part thereof" p. 5 1 the public and trafficking in such a device was forbidden and 2 could be enjoined by a Federal Court. 3 Congress intended that the injury that the Court 4 would protect against would be the loss of the device 5 protecting the copyrighted material. The security afforded by 6 such protective device is the asset protected by the 7 anticircumvention law. 8 Plaintiff's harm is first the loss of that asset 9 which could create irreparable loss and the threat of 10 uncontrollable copying. After all, we will show the studios 11 were not going to go forward into the digital world with this 12 new product, DVD, without such protective technology. So you're agreeing that 1201(a) is patent-like control by authors rather than inventors? Perhaps you should try on a definition of access that doesn't lead to that unconstitutional conclusion: access is the commercial transaction that compensates the copyright owner for transmission of their work. Hmmm. See? The shoe fits much better now. About the copying bit on line 10, I thought this was a 1201(a) lawsuit, but now your talking about exclusive rights, which would be 1201(b). Care to explain? 13 Congress did not provide that the Court would not 14 grant injunctions in the anticircumvention law until actual 15 infringement, actual copying or contributory infringement took 16 place. Had Congress imposed that prerequisite, there would 17 have been no need for the anticircumvention law in the first 18 place. Oh yes there would be a need. Remember? Electronic transmission exists now. Sale of a work without moving a copy (but creating one at the other end instead) means that we have to think about whether or not third parties might get use of an unauthorized copy without paying. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 18:53:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16489 for dvd-discuss-outgoing; Tue, 25 Jul 2000 18:53:31 -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 SAA16486 for ; Tue, 25 Jul 2000 18:53:30 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C45H>; Tue, 25 Jul 2000 15:53:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D43@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Tue, 25 Jul 2000 15:53:04 -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: Paul Fenimore [mailto:fenimore@roadrunner.com] > Sent: Tuesday, July 25, 2000 1:58 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > On Tue, Jul 25, 2000 at 01:42:10PM -0700, Richard Hartman wrote: > > > > > > > -----Original Message----- > > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > > > Sent: Tuesday, July 25, 2000 12:51 PM > > > To: dvd-discuss@eon.law.harvard.edu > > > Subject: Re: [dvd-discuss] authorization > > > > > > > > > On Tue, Jul 25, 2000 at 12:05:09PM -0700, Richard Hartman wrote: > > > > But doesn't sale of the physical object also > > > > convey some subset of rights from the copyright > > > > owner to the buyer of the physical object? (e.g. > > > > "for home viewing only"?) > > > > > > Home viewing is not an exclusive right, so it was never in the > > > bundle of things the copyright is allowed to control (baring the > > > MPAA reading of 1201(a)). The statement on the disk not a grant > > > of a privilege, it is a tautology -- a restatement of what federal > > > law and the constitution reserve to everyone. > > > > > > One might alternatively view it as an attempt to bamboozle people > > > into not exercising their statutory right under section 109. > > > > > > > Somebody posted some excerpts from 109 recently, and it looks > > exactly as if ownership of the physical object grants certain > > rights irrespective of the desires of the copyright owner. > > Yeah. I think we're at cross purposes. As you note, a right to > public performance conveys with ownership of the legal copy. My point > was that the right to private performance after publication doesn't > convey. Private performance isn't part of 106, so we always have that > use as a right. Hopefully, private performance is beyond the reach of > statute for constitutional reasons. > All I was trying to get at was that Kaplan seemed to be dismissing the media saying that all the buyer owned was the "polycarbonate disc", not the work. My point is that some rights -do- attach to the ownership of that media, and the 109 excerpt shows 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 Tue Jul 25 19:01:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17846 for dvd-discuss-outgoing; Tue, 25 Jul 2000 19:01:22 -0400 Received: from orange.fenimore.org (sf-du155.cybermesa.com [209.12.75.155]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17843 for ; Tue, 25 Jul 2000 19:01:09 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id RAA04325 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 17:01:36 -0600 Date: Tue, 25 Jul 2000 17:01:36 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Message-ID: <20000725170136.B4026@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 Day 1, p. 7: 9 Once a film is decrypted and exchangeable on the Net 10 for down loading, that film's protection is lost for good. 1. The film need not be "decrypted" to be exchangeable, and subsequently playable after "decryption" subsequent to "down load[]". 2. There is no protection because of an insideous attack I discovered on a friend's DVD player, which I personally verified the feasability of: the play button. Bang. The machine coughed up the work on demand. And what was stopping me from re-digitzing? Nothing. CSS doesn't protect anything about the work. It provides leverage for contracts that limit the function of player devices and programs. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 19:36:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19110 for dvd-discuss-outgoing; Tue, 25 Jul 2000 19:36:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19107 for ; Tue, 25 Jul 2000 19:36:14 -0400 Received: by aero.org id <17102-7>; Tue, 25 Jul 2000 16:35:21 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdSAAa03414; Tue Jul 25 16:35:11 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 16:35:02 -0700 Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/25/2000 04:35:01 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Tue, 25 Jul 2000 16:35:18 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. The issue here has NEVER been copy prevention of copyright material (a copy is a copy...bits is bits I don't need to decrypt ANYTHING to make a copy). The issue has been the control of access TO copyrighted material. The studios and MPAA have worked out big business models to maximize their revenues from distribution. Now they want to put out DVDs to make you buy yet another copy of a movie. BUT, rather than changing their models or even doing some assessment of the impact to other markets, they want to keep their distribution plans intact (e.g., NO MOVIE IS AVAILABLE IN EUROPE BEFORE ITS TIME) And, they think they have the legislation, the technology, the source, and the consortium in place to allow them to do that.....makes me wonder what the dinosaurs where thinking as they went extinct..... BTW - I'm not certain that digital is better or that DVD beats VHS....Does anybody have a DVD copy of Forbidden Planet and can check this? I have two VHS tapes of it [Wowww there MPAA, I purchased them both legally and they are still in the original boxes......]. One I bought in the mid 80s. It's a film transfer. The other I bought a few years ago and it's a digitally restored version. The amusing thing is that there are a few scenes where the artifacts of the digitial processing are REALLY obnoxious. If anyone has a DVD copy look at the scene when the spaceship is landing. Are the edges around the moon and horizon jagged to the point that for a split second it doesn't even register as a circular objects? Paul Fenimore @eon.law.harvard.edu on 07/25/2000 04:02:02 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Day 1, p. 7: 9 Once a film is decrypted and exchangeable on the Net 10 for down loading, that film's protection is lost for good. 1. The film need not be "decrypted" to be exchangeable, and subsequently playable after "decryption" subsequent to "down load[]". 2. There is no protection because of an insideous attack I discovered on a friend's DVD player, which I personally verified the feasability of: the play button. Bang. The machine coughed up the work on demand. And what was stopping me from re-digitzing? Nothing. CSS doesn't protect anything about the work. It provides leverage for contracts that limit the function of player devices and programs. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 19:53:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA20588 for dvd-discuss-outgoing; Tue, 25 Jul 2000 19:53:33 -0400 Received: from dial152.roadrunner.com (sf-du152.cybermesa.com [209.12.75.152]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA20585 for ; Tue, 25 Jul 2000 19:53:31 -0400 Received: (from paul@localhost) by dial152.roadrunner.com (8.8.7/8.8.7) id RAA04582 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 17:53:58 -0600 Date: Tue, 25 Jul 2000 17:53:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention Message-ID: <20000725175356.C4026@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 Day 1, page 25: 9 Q. And what kind of disks will authorized players play? 10 A. Well, to my knowledge authorized players play compliant 11 disks. 12 Q. Should they play other disks? 13 A. I believe it's a requirement, a licensing requirement that 14 they be constructed to not play unlicensed disks. Hunh? Regardless of what the license says, the "design" of the CSS system simply doesn't permit what Shamos says on lines 13,14 is required by the license. Shamos is also flopping between "complaint disks" and "unlicensed disks". There's a difference. 15 Q. Do you know what DeCSS is? 16 A. Yes. 17 Q. What does it do? 18 A. DeCSS is a computer program that circumvents the 19 protections on the CSS DVD. No analysis of authority et al. has occurred. Lines 18 and 19 are a "conjecture of law", not a statement of fact. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 20:10:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21331 for dvd-discuss-outgoing; Tue, 25 Jul 2000 20:10:50 -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 UAA21328 for ; Tue, 25 Jul 2000 20:10:49 -0400 Message-ID: <20000726000943.26582.qmail@web510.mail.yahoo.com> Received: from [64.81.25.37] by web510.mail.yahoo.com; Tue, 25 Jul 2000 17:09:43 PDT Date: Tue, 25 Jul 2000 17:09:43 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Antitrust and IP: Kodak 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 I went out and did a search on jurisline for antitrust and copyright and the Kodak case popped up. The case went to the Supreme Court who overturned summary judgement, leading to a trial which then went to the 9th Circuit, who sided with the plaintiffs and ruled Kodak violated antitrust laws. Here's some quotes from these cases that I think are relevant. Adopting the language used by these courts, DVD movies create a "derivitive aftermarket" for players. In such markets, the IP protections in the former market do NOT provide protection from tying claims. As the 9th Circuit says below, a holder of a copyright violates the antitrust laws by "concerted and contractual behavior that threatens competition." Does that sound like it applies here? ______________________ EASTMAN KODAK CO. v. IMAGE TECH. SVCS., 504 U.S. 451 (1992) http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=504&invol=451 "The Court has held many times that power gained through some natural and legal advantage such as a patent, copyright, or business acumen can give rise to liability if "a seller exploits his dominant position in one market to expand his empire into the next." Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 611 (1953), see, e.g., Northern Pacific R. Co. v. United States, 356 U.S. 1 (1958); United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948); Leitch Mfg. Co. v. Barber Co., 302 U.S. 458, 463 (1938). Moreover, on the occasions when the Court has considered tying in derivative aftermarkets by manufacturers, it has not adopted any exception to the usual antitrust analysis, treating derivative aftermarkets as it has every other separate market. See International Salt Co. v. United States, 332 U.S. 392 (1947); International Business Machines Corp. v. United States, 298 U.S. 131 (1936); United Shoe Machinery Corp. v. United States, 258 U.S. 451 (1922)." [504 U.S. at 480 n.29] _____________________________ IMAGE TECHNICAL SERVICES INC V EASTMAN KODAK CO, No. 96-15293, (9th Cir. 8/26/97) http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/9th/9615293v6.html First, as to antitrust liability, case law supports the proposition that a holder of a patent or copyright violates the antitrust laws by "concerted and contractual behavior that threatens competition." In footnote 29, previously discussed, the Supreme Court in Kodak refutes the argument that the possession by a manufacturer of "inherent power" in the market for its parts "should immunize [that manufacturer] from the antitrust laws in another market." 504 U.S. at 480 n.29. The Court stated that a monopolist who acquires a domi- nant position in one market through patents and copyrights may violate S 2 if the monopolist exploits that dominant posi- tion to enhance a monopoly in another market. Although foot- note 29 appears in the Court's discussion of theS 1 tying claim, the S 2 discussion frequently refers back to the S 1 dis- cussion, and the Court's statement that "exploit[ing] [a] domi- nant position in one market to expand [the] empire into the next" is broad enough to cover monopoly leveraging under S 2. Id.8 By responding in this fashion, the Court in Kodak supposed that intellectual property rights do not confer an absolute immunity from antitrust claims. At the border of intellectual property monopolies and antitrust markets lies a field of dissonance yet to be harmonized by statute or the Supreme Court. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 20:25:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA22796 for dvd-discuss-outgoing; Tue, 25 Jul 2000 20:25:51 -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 UAA22791 for ; Tue, 25 Jul 2000 20:25:50 -0400 Message-ID: <20000726002444.8635.qmail@web511.mail.yahoo.com> Received: from [64.81.25.37] by web511.mail.yahoo.com; Tue, 25 Jul 2000 17:24:44 PDT Date: Tue, 25 Jul 2000 17:24:44 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Nice article by Deborah Durham-Vichr of LinuxWorld 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.linuxworld.com/linuxworld/lw-2000-07/lw-07-decsstrial.html Of interest to our Amicus brief effort: "The defense expects to rest this Wednesday. After a period of about three weeks for brief filing, it anticipates a speedy determination by the judge ... " __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 21:08:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23639 for dvd-discuss-outgoing; Tue, 25 Jul 2000 21:08:23 -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 VAA23636 for ; Tue, 25 Jul 2000 21:08:22 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id <3PF6C46D>; Tue, 25 Jul 2000 18:07:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D44@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Shotgun Analogy Date: Tue, 25 Jul 2000 18:07:29 -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 > -----Original Message----- > From: Consilgere@cs.com [mailto:Consilgere@cs.com] > Sent: Monday, July 24, 2000 9:05 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Shotgun Analogy > > > It does have merit to it, our own government regards encryption as an > armament, why not take the next step and extend it the constitutional > freedoms armaments get? > Oh. My. God. .... That is so perverse that it might be worth trying! -- -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 Jul 25 21:25:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23782 for dvd-discuss-outgoing; Tue, 25 Jul 2000 21:25:41 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA23779 for ; Tue, 25 Jul 2000 21:25:40 -0400 Received: from 208-58-198-48.s48.tnt11.lnhva.md.dialup.rcn.com ([208.58.198.48]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13HFwW-00036K-00 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 21:25:05 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D44@mail2.onetouch.com> References: <5A8391CA2D9ED311AFAA080009D982B10B1D44@mail2.onetouch.com> Date: Tue, 25 Jul 2000 21:24:13 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: RE: [dvd-discuss] Shotgun Analogy 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 > > > It does have merit to it, our own government regards encryption as an > > armament, why not take the next step and extend it the constitutional > > freedoms armaments get? > > > >Oh. My. God. .... That is so perverse that it might be worth trying! Well regulated by the state, with a 3 day waiting period before downloading gpg/pgp? Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 21:38:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA23901 for dvd-discuss-outgoing; Tue, 25 Jul 2000 21:38:32 -0400 Received: from uakron.edu (uakron.edu [130.101.5.4]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA23898 for ; Tue, 25 Jul 2000 21:38:31 -0400 Received: from billi (erie11-11.comp.uakron.edu [130.101.6.11]) by uakron.edu (8.9.3/8.9.1) with SMTP id VAA06280 for ; Tue, 25 Jul 2000 21:37:55 -0400 (EDT) Message-ID: <001c01bff6a1$67bd73e0$0b066582@billi> From: "Billi Copeland" To: References: <5A8391CA2D9ED311AFAA080009D982B10B1D44@mail2.onetouch.com> Subject: Re: [dvd-discuss] Shotgun Analogy Date: Tue, 25 Jul 2000 21:32:46 -0400 MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook Express 5.00.2919.6600 X-MimeOLE: Produced By Microsoft MimeOLE V5.00.2919.6600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Does anyone know how I can get off of this email list? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:19:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24539 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:19:46 -0400 Received: from dial232.roadrunner.com (sf-du232.cybermesa.com [209.12.75.232]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA24535 for ; Tue, 25 Jul 2000 22:19:43 -0400 Received: (from paul@localhost) by dial232.roadrunner.com (8.8.7/8.8.7) id UAA00774 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 20:20:00 -0600 Date: Tue, 25 Jul 2000 20:19:59 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Message-ID: <20000725201958.A619@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 Day 1, p. 37, Shamos: 20 Now, copying to a hard drive is something that 21 compliant DVD players are not allowed to do, because once the 22 materials are copied to the hard drive they can be freely 23 played, freely edited, freely distributed. Compliant with the license, there is no technological requirement that DVD players are unable to write to disk --- disk, RAM, video subsystem are all the same from a fundamental view. Copying to disk a non-unique route to freely edited, distributed. It isn't clear why Shamos even mentions freely played because CSS makes no effort to restrict playing either technologically or via CSS license. The play button is there. It works. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:25:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24674 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:25:06 -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 WAA24671 for ; Tue, 25 Jul 2000 22:25:05 -0400 Received: from ip144.bedford8.ma.pub-ip.psi.net ([38.32.78.144]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13HGs1-0003Gc-00 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 22:24:30 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Date: Tue, 25 Jul 2000 22:18:18 -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 WAA24672 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael.A.Rolenz@aero.org wrote: >BTW - I'm not certain that digital is better or that DVD beats VHS....Does >anybody have a DVD copy of Forbidden Planet and can check this? I have two Well the real test is still a theatrical showing on a BIG screen (not some 12plex.) We've already become conditioned to accept so many compromises that were never forseen by film directors and cinematographers. It's a stretch to claim that a DVD or VHS translation is better than a poor facsimile of an original film. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:26:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24772 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:26:31 -0400 Received: from dial161.roadrunner.com (sf-du161.cybermesa.com [209.12.75.161]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA24769 for ; Tue, 25 Jul 2000 22:26:29 -0400 Received: (from paul@localhost) by dial161.roadrunner.com (8.8.7/8.8.7) id UAA00929 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 20:26:51 -0600 Date: Tue, 25 Jul 2000 20:26:49 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p.38: automated download Message-ID: <20000725202649.A780@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 Day 1, p.38, Shamos: 3 And it's all arranged so that when you click on this 4 link, this DeCSS.zip link, that an automatic procedure is 5 invoked that causes the file to be downloaded to your own 6 computer. Which does nothing to distinguish the links on 2600's site from a vast number of links else where. The "automated procedure" is a property of HTML and HTTP in general and common mark-up practices, not some special thing 2600 magazine did. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:33:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24888 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:33:37 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA24885 for ; Tue, 25 Jul 2000 22:33:25 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA12633 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 22:36:12 -0400 Date: Tue, 25 Jul 2000 22:36:07 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS ... Message-ID: <20000725223606.A12564@eldritchpress.org> References: <20000724214706.2355.qmail@web515.mail.yahoo.com> <4.2.2.20000725121451.00ddb940@pop.bellatlantic.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.2.2.20000725121451.00ddb940@pop.bellatlantic.net>; from wendy@seltzer.com on Tue, Jul 25, 2000 at 12:36:05PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 12:36:05PM -0400, Wendy Seltzer wrote: > > ... if the DMCA allows copyright owners to fence in > their properties and then sue for trespass, shouldn't the burden be on the > plaintiff to demonstrate that its property line was visible and legally > recorded to give potential trespassers notice? Yes. I am woefully unlearned about DVD and that technology, so I went to the local bookstore and perused a 1998 book on DVD, "DVD Demystified," by Jim Taylor, McGraw-Hill, ISBN 0-07-064841-7, paperback. It was evidently written in 1997 or early 1998, before the DMCA, and before the time the DVD-CCA had been set up. Here is what he says about the CSS license: WHAT: Every CSS-compliant COMPUTER is required to have (under license): - A CSS-licensed DVD-ROM drive with licensed authentication hardware - CSS-licensed decoding hardware or software including authentication and descrambling - CSS-licensed video components - regional management support - protection of digital output - protection of analog video output (Macrovision or equivalent) - protection against copying descrambled files - rejection of "no copies allowed" material on a recordable disc WHO: - the computer Operating System is required to protect the descrambled work against copying - application developers must get a CSS license if their apps manipulate descrambled content - disc manufacturers must license CSS and protect algorithm and keys - drive makers must license CSS and provide authentication and key obfuscation - any maker of hardware or software that deals with the descrambled data streams must protect the algorithm and keys, including TV output graphics cards - systems integrators and OEMs must also license CSS - user doesn't need a license for CSS Taylor says (before DeCSS), "The CSS algorithm and keys are supposed to be a 'very big secret,' but anyone who thinks it will remain a secret for long is delusional. It's inevitable that the algorithm will be broken, the keys will be compromised, and the entire system will be laid out in detail on the Internet, perhaps next to the instructions on how to build nuclear weapons." From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:44:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA24955 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:44:50 -0400 Received: from dial76.roadrunner.com (sf-du76.cybermesa.com [209.12.75.76]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA24952 for ; Tue, 25 Jul 2000 22:44:48 -0400 Received: (from paul@localhost) by dial76.roadrunner.com (8.8.7/8.8.7) id UAA01083 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 20:45:04 -0600 Date: Tue, 25 Jul 2000 20:45:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p.43: MPEG-4/DivX, making derivatives Message-ID: <20000725204502.B780@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 Day 1, p.43, Shamos: 3 Q. Now, are there ways to make the file you obtained, that 4 is, the file of Sleepless in Seattle resulting from the 5 application of DeCSS, are there ways to make that file small? Now the P's are throwing making a derivative into the mix. The descrambling was necessary to make this derivative (actually, I don't think I can prove that last statement, but it might be true), it is not necessary to the copying of either the original or the derivative. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:50:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25060 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:50:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25057 for ; Tue, 25 Jul 2000 22:49:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA12735 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 22:52:46 -0400 Date: Tue, 25 Jul 2000 22:52:40 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] authorization Message-ID: <20000725225240.B12564@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D43@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D43@mail2.onetouch.com>; from hartman@onetouch.com on Tue, Jul 25, 2000 at 03:53:04PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 03:53:04PM -0700, Richard Hartman wrote: > ... > All I was trying to get at was that Kaplan seemed to be > dismissing the media saying that all the buyer owned > was the "polycarbonate disc", not the work. My point > is that some rights -do- attach to the ownership of that > media, and the 109 excerpt shows this. Sounds like this point needs to be carefully placed in the record. This case is not a licensing case, is it, under UCITA? It's a copyright case and there must be plenty of precedent for fair use after first sale. Because if Kaplan denies that he must be assuming that DMCA took away all rights of the first sale, under law, and there is no question of fact as to what the license is, or the fair use rights (even though the law specifically states that the consumer still enjoys fair use). From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 22:56:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA25119 for dvd-discuss-outgoing; Tue, 25 Jul 2000 22:56:47 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA25116 for ; Tue, 25 Jul 2000 22:56:41 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA12758 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 22:59:28 -0400 Date: Tue, 25 Jul 2000 22:59:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Message-ID: <20000725225923.C12564@eldritchpress.org> References: <20000725170136.B4026@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000725170136.B4026@localhost>; from fenimore@roadrunner.com on Tue, Jul 25, 2000 at 05:01:36PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 05:01:36PM -0600, Paul Fenimore wrote: > Day 1, p. 7: > > 9 Once a film is decrypted and exchangeable on the Net ^^^^^^^^^^^^ > 10 for down loading, that film's protection is lost for good. No, it just means your 120 "antipiracy" investigators have to do their work, once the film has actually been *exchanged*. Of course, you might have to upgrade their computers and network connections a bit, say to individual T3 lines! If I bought a DVD could I resell it or give it away? Why would that cause the copyright protection to be lost? Why does it have to be decrypted to be exchanged? From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 23:02:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25264 for dvd-discuss-outgoing; Tue, 25 Jul 2000 23:02:01 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25261 for ; Tue, 25 Jul 2000 23:01:49 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA12775 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 23:04:36 -0400 Date: Tue, 25 Jul 2000 23:04:31 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000725230430.D12564@eldritchpress.org> References: <20000726000943.26582.qmail@web510.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000726000943.26582.qmail@web510.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Tue, Jul 25, 2000 at 05:09:43PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 05:09:43PM -0700, Bryan Taylor wrote: > I went out and did a search on jurisline for antitrust and copyright > and the Kodak case popped up. This is a good case and needs to get in the record. Of course, one might simply look at the Constitution and see that the copyright monopoly can be granted ONLY "to promote the progress of science and the useful arts." There is a long history about that. No way can Congress override the Consitution without an amendment. From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 23:11:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25314 for dvd-discuss-outgoing; Tue, 25 Jul 2000 23:11:02 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25311 for ; Tue, 25 Jul 2000 23:11:01 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id WAA11304 for ; Tue, 25 Jul 2000 22:09:56 -0500 Message-ID: <397E51E9.2406C9C5@mninter.net> Date: Tue, 25 Jul 2000 21:50:17 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] cryptome 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 Has anyone been able to get through to cryptome recently? Mr. Young, Mr. Young, fly away home! Your website is unresponsive, and I can't bear it! -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 23:29:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25482 for dvd-discuss-outgoing; Tue, 25 Jul 2000 23:29:12 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25479 for ; Tue, 25 Jul 2000 23:29:11 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id UAA03588 for dvd-discuss@eon.law.harvard.edu; Tue, 25 Jul 2000 20:39:14 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] cryptome Date: Tue, 25 Jul 2000 20:38:43 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <397E51E9.2406C9C5@mninter.net> In-Reply-To: <397E51E9.2406C9C5@mninter.net> MIME-Version: 1.0 Message-Id: <00072520391013.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Someone has been putting a DoS attack on his site, oddly enough, just days after the FBI asked him to take down a document and he refused. --Russell On Tue, 25 Jul 2000, you wrote: > Has anyone been able to get through to cryptome recently? Mr. Young, Mr. > Young, fly away home! Your website is unresponsive, and I can't bear it! > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Tue Jul 25 23:32:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25622 for dvd-discuss-outgoing; Tue, 25 Jul 2000 23:32:01 -0400 Received: from smtp-out1.bellatlantic.net (smtp-out1.bellatlantic.net [199.45.39.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25619 for ; Tue, 25 Jul 2000 23:32:00 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out1.bellatlantic.net (8.9.1/8.9.1) with SMTP id XAA29445 for ; Tue, 25 Jul 2000 23:31:15 -0400 (EDT) Message-Id: <4.1.20000725230657.019c7cf0@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Tue, 25 Jul 2000 23:32:33 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-Reply-To: <397F3B84.96B2A11D@easybase.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 Touretzky gave brilliant testimony this morning to the legal irrelevance of a distinction between source and object code, comparing source, object, and assembly code and testifying to the possibility of conversing in object code. (I wasn't there for the morning session, but read the transcript afterwards (not yet online).) His testimony was enough to make Kaplan say at the trial's end that he "found Prof. Touretzky's statements today persuasive and educational ... [and would find it] untenable that computer code of any kind has no expressive content." That is, Kaplan seemed convinced that code is protected First Amendment speech. Kaplan said he was still puzzled by what to do with the speech, however, asking what analogy he could draw with the burning of draft cards (O'Brien), or other speech pigeonholes (such as expressive conduct, fighting words, commercial speech, obscenity). His understanding of Touretzky appeared to be a huge step forward for the First Amendment argument. --Wendy (who arrived just in time to see the moving into evidence of boxes of documents) At 10:27 PM 07/26/2000 +0300, Moshe Vainer wrote: >Reading David S. Touretzky declaration, It seems that the failure to >communicate that there is no significant difference between source code and >executable code could be easily explained to the Judge in this case (and >other cases) --- 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 Jul 25 23:38:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25723 for dvd-discuss-outgoing; Tue, 25 Jul 2000 23:38:56 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25720 for ; Tue, 25 Jul 2000 23:38:55 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id WAA13909 for ; Tue, 25 Jul 2000 22:38:02 -0500 Message-ID: <397E5877.5D589BF0@mninter.net> Date: Tue, 25 Jul 2000 22:18:15 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] roll credits References: <200006021800.OAA18916@eon.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 Having read Mr. Ariel Glenn's summary of the events today, I have to say I'm surprised that not once did the defense address the fundamental question of authority. Was it too much of a hornets nest? Did the expedited schedule preclude it? Was the entire DVD-Discuss list off track? I think the first amendment defenses are great and useful and everything, but I think the defense may have neglected the charges at hand to make the case for the supreme court. What do you folks think of this? Is it fair to the defendant? Is it preferable? Is it at all unique or surprising? http://www.columbia.edu/~ariel/dvd/day6.html -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 00:01:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26130 for dvd-discuss-outgoing; Wed, 26 Jul 2000 00:01:13 -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 AAA26106 for ; Wed, 26 Jul 2000 00:01:01 -0400 Received: from jy01 (user-2inig7c.dialup.mindspring.com [165.121.64.236]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id AAA21987 for ; Wed, 26 Jul 2000 00:00:19 -0400 (EDT) Message-Id: <200007260400.AAA21987@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Tue, 25 Jul 2000 23:56:13 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] cryptome In-Reply-To: <397E51E9.2406C9C5@mninter.net> Mime-Version: 1.0 Content-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're trying to repair whatever is eating cryptome, but not making much headway. A more poweful server is due to come online in a few days, which might take care of the problem, which our ISP says is overloading, others say that cannot be true according to test results. We spent a few hours with the 2600 defense crowd today, had lunch with about a dozen of them, and watched the ending of the trial. Wow, what a learning experience it was, for all parties -- superb tutorials by all the defense experts and contributors here, applaud yourselves. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 00:16:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26881 for dvd-discuss-outgoing; Wed, 26 Jul 2000 00:16:18 -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 AAA26858 for ; Wed, 26 Jul 2000 00:16:16 -0400 Received: from jy01 (user-2inig7c.dialup.mindspring.com [165.121.64.236]) by smtp6.mindspring.com (8.9.3/8.8.5) with SMTP id AAA31798 for ; Wed, 26 Jul 2000 00:15:40 -0400 (EDT) Message-Id: <200007260415.AAA31798@smtp6.mindspring.com> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Wed, 26 Jul 2000 00:11:34 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] cryptome In-Reply-To: <397E51E9.2406C9C5@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu There's a highly accessible mirror of cryptome at: https://www.ccc.de/mirrors/cryptome.org/ It has the most recent files but not the full archives. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 00:37:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30627 for dvd-discuss-outgoing; Wed, 26 Jul 2000 00:37:40 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30608 for ; Wed, 26 Jul 2000 00:37:28 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA12893 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 00:40:16 -0400 Date: Wed, 26 Jul 2000 00:40:11 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] any more issues? Message-ID: <20000726004011.A12807@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-Mailer: Mutt 1.0i Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Reply-To: Just wondering if there are any other issues we failed to raise. Looking at the plaintiff's brief amended in January, I see this: >... > Claim for Relief > (Violation of Provisions Governing Circumvention > of Copyright Protection Systems, > 17 U.S.C. § 1201 et seq.) > > 26. Plaintiffs incorporate by this reference the >allegations contained in paragraphs 1 through 25, inclusive. > > 27. The Copyright Act, Title 17 U.S.C. § 1201(a)(2), provides that: > > [n]o person shall manufacture, import, offer to the public, provide, > or otherwise traffic in any technology, product, service, device, component, or part > thereof, that: > > (A) is primarily designed or produced for the purpose of > circumventing a technological measure that effectively > controls access to a work protected under this title; "Primarily"--was that covered? If its primary use as designed is fair use, does this still apply? > (B) has only limited commercially significant purpose or > use other than to circumvent a technological measure that > effectively controls access to a work > protected under this title; or "Limited commercially significant purpose"--was that covered? What about purpose in allowing fair use of DVDs, even if non-commercial? > (C) is marketed by that person or another acting in concert with > that person with that person's knowledge for use in circumventing a technological > measure that effectively controls access to a work protected under this title. "Marketed"--was that covered? What if the device is not sold? > 28. Each defendant offers to the public, provides, or otherwise > traffics in, DeCSS through his Internet website. "Trafficking"--is it clear that a hyperlink does not "traffic"? > 29. CSS is a technological measure that (a) effectively controls > access to works protected by the Copyright Act, and (b) effectively > protects rights of copyright ownersto control whether an end user > can reproduce, manufacture, adapt, publicly perform and/or distribute > unauthorized copies of their copyright works or portions thereof. Okay, but what else does CSS do--if ALL access has to be authorized, doesn't that mean regions, analog TV display in the computer, etc. --where is the authority under copyright law to prevent ANY access, including fair use? > 30. DeCSS (a) is primarily designed or produced for the purpose of > circumventing the protection afforded by CSS, Yes, so what? It can't be used without a valid DVD and valid player. So where is the "circumvention"? >(b) has only limited commercially significant purpose It's not sold in itself, so why bring this up. Of course, having a DVD player makes Linux or BSD a more commercially successful product, and we know that is why you don't want DeCSS. > or use other than to circumvent CSS or the protection afforded by CSS, including using the hyperlinks as free speech even? using DeCSS to play DVDs on Linux computers? educational purposes-- the many professors who testified? >and/or (c) is marketed by Defendants and/or others acting in concert with them with the > knowledge of its use in circumventing CSS or the protection afforded by CSS. deny any knowledge of DeCSS being used to infringe copyright or to copy bit-for-bit copies of DVDs over the Internet or otherwise. it should not be up to the defense to prove that others are violating the law. > 31. By offering to the public, providing, or otherwise trafficking in > DeCSS, Defendants have violated the provisions governing Circumvention of Copyright Protection > Systems set forth in the Copyright Act, 17 U.S.C. §§ 1201 et seq. Sorry, 2600 didn't traffic in DeCSS--it is a magazine and it told the story. And the story was not originated at 2600 nor was DeCSS. and 2600 doesn't have ads at its site, so any increase in visitor traffic is not trafficking. > 32. Unless enjoined by this Court, Defendants' violations will > continue. Plaintiffs' remedy at law is not adequate. Protection of > Plaintiffs' rights must include an > injunction. ... Yes, plaintiffs can investigate allegations and determine if copying on the Internet occurs, and determine how this is being done, without closing down 2600's web site. If copyright is being infringed, go before a judge and prove it--don't rely either on clumsy technical measures, or a judge to prophyactically prevent speech you don't like. It really sounds like 1201 is intended to be applied to hardware devices like cable tv descrambling boxes. The very language seems to be wildly inapplicable to DeCSS. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 00:50:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA31141 for dvd-discuss-outgoing; Wed, 26 Jul 2000 00:50:11 -0400 Received: from web106.yahoomail.com (web106.yahoomail.com [205.180.60.73]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id AAA31138 for ; Wed, 26 Jul 2000 00:50:10 -0400 Received: (qmail 29409 invoked by uid 60001); 26 Jul 2000 04:49:34 -0000 Message-ID: <20000726044934.29408.qmail@web106.yahoomail.com> Received: from [128.122.253.144] by web106.yahoomail.com; Tue, 25 Jul 2000 21:49:34 PDT Date: Tue, 25 Jul 2000 21:49:34 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] cryptome 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 think this has distracted Mr. Young. === >From Wired News, available online at: http://www.wired.com/news/print/0,1294,37718,00.html FBI Pressuring Spy Archivist by Declan McCullagh 10:00 a.m. Jul. 21, 2000 PDT The FBI wants to delete a Japanese intelligence document from a U.S. website. Two special agents on Thursday contacted online archivist John Young, who maintains a massive archive of files related to spy agencies, and politely asked him to yank information related to Japan's Public Security Investigation Agency. Young refused to comply with the request. He said the FBI told him they were asking on behalf of the Japanese Ministry of Justice, which oversees the PSIA. An FBI spokesman was not immediately available for comment. The 120KB document appears to be a PSIA personnel file, with over 400 names, birthdates, and titles, starting with Director General Hidenao Toyoshima. The document's title: "The Most Incompetent Intelligence Agency in the World." "There's nothing wrong with me putting this stuff up in the U.S.," Young says of his cryptome.org site. "It's not wrong or illegal." Young, a 64-year-old New York architect, has spent years amassing a vast collection of reports. The collection, over 4,000 files about privacy, technology, and intelligence agencies, is probably the world's most comprehensive public collection of its kind. For the last week, Young has been busy placing a series of documents related to Japanese intelligence on cryptome.org. Last Friday, he posted what appears to be an internal CIA document about the agenda of a Japanese delegation's visit in June 1998. On Sunday, Young added a document apparently classified as "secret" by the CIA -- also prepared for Japanese officials -- that includes a fairly detailed overview of the U.S. intelligence community, including its budgets and personnel trends. Its author is listed as assistant CIA director Charles Allen, who referred calls to a spokeswoman. "We're always concerned if classified information is made public," a CIA spokeswoman said. "That's a serious matter.... Leaks of classified information are certainly of concern to this agency." Young has identified his source for the apparently leaked documents only as "S.K." Someone using the name Shigeo Kifuji last week posted some of the same documents on the alt.security.espionage newsgroup using a Web-based email account. The agents who contacted Young -- James Castano and David Marzilliano of the New York field office -- did not comment. "Both agents were very courteous during most of the conversations," Young said in an account posted on his website. "Except toward the end of the conversation with Mr. Marzigliano [sic], when I mentioned my intention to publish an account without revealing his and Mr. Castano's names, he warned me there would be 'serious trouble' if their names were published, and that he would be speaking with the U.S. Attorney about the matter and call me again." Marzilliano directed calls to FBI spokesman James Margolin, who was not immediately available. A spokesman at headquarters in Washington was also not available. This isn't the first time Young appears to have irritated an intelligence agency. He reported this spring that a British spy agency, apparently MI5, contacted his Internet service provider and asked that they yank sensitive documents that Young had posted. Japan's PSIA, the rough equivalent of the United States' FBI, was created in 1952. It has 43 field offices and is tasked with enforcing the Subversive Activities Prevention Law aimed at violent activists and "disruptive" organizations. --- Chris Moseng wrote: > Has anyone been able to get through to cryptome > recently? Mr. Young, Mr. > Young, fly away home! Your website is unresponsive, > and I can't bear it! > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 01:00:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31346 for dvd-discuss-outgoing; Wed, 26 Jul 2000 01:00:49 -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 BAA31343 for ; Wed, 26 Jul 2000 01:00:48 -0400 Message-ID: <20000726045938.20051.qmail@web509.mail.yahoo.com> Received: from [64.81.25.37] by web509.mail.yahoo.com; Tue, 25 Jul 2000 21:59:38 PDT Date: Tue, 25 Jul 2000 21:59:38 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] roll credits 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 --- Chris Moseng wrote: > Having read Mr. Ariel Glenn's summary of the events today, I have to > say I'm surprised that not once did the defense address the > fundamental question of authority. They did initiate it, but Kaplan shut them down. His point (which is pretty valid) is that there are no factual disputes about it -- it's purely a question of law. He said something to the effect of 'there's no contract with the end user' and 'whatever rights are transfered to the user is purely a function of the Copyright Act and the DMCA'. > Was it too much of a hornets nest? Did the expedited schedule > preclude it? Was the entire DVD-Discuss list off track? Briefs are due Aug 8. We'll find out then what emphasis the defense places on it. I look for them to pound it pretty hard, because that's where the antitrust stuff comes from. > I think the first amendment defenses are great and useful and > everything, but I think the defense may have neglected the charges at > hand to make the case for the supreme court. It's too early to make such a statement. The evidenciary part of the trial is concluding, but the arguments on the law is a much larger part of this. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail – Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 01:52:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA32690 for dvd-discuss-outgoing; Wed, 26 Jul 2000 01:52:52 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA32687 for ; Wed, 26 Jul 2000 01:52:52 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id BAA09782; Wed, 26 Jul 2000 01:52:16 -0400 (EDT) Message-ID: <397E7CE3.B564E6F9@mit.edu> Date: Wed, 26 Jul 2000 01:53:39 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS ... References: <20000724214706.2355.qmail@web515.mail.yahoo.com> <4.2.2.20000725121451.00ddb940@pop.bellatlantic.net> <20000725223606.A12564@eldritchpress.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 Eric Eldred wrote: > > On Tue, Jul 25, 2000 at 12:36:05PM -0400, Wendy Seltzer wrote: > > > > ... if the DMCA allows copyright owners to fence in > > their properties and then sue for trespass, shouldn't the burden be on the > > plaintiff to demonstrate that its property line was visible and legally > > recorded to give potential trespassers notice? > > Yes. I am woefully unlearned about DVD and that technology, > so I went to the local bookstore and perused a 1998 book on DVD, > "DVD Demystified," by Jim Taylor, McGraw-Hill, ISBN 0-07-064841-7, > paperback. It was evidently written in 1997 or early 1998, > before the DMCA, and before the time the DVD-CCA had been set up. > Here is what he says about the CSS license: > > WHAT: > > Every CSS-compliant COMPUTER is required to have (under license): > - A CSS-licensed DVD-ROM drive with licensed authentication hardware > - CSS-licensed decoding hardware or software including authentication > and descrambling > - CSS-licensed video components > - regional management support > - protection of digital output > - protection of analog video output (Macrovision or equivalent) > - protection against copying descrambled files > - rejection of "no copies allowed" material on a recordable disc > > WHO: > > - the computer Operating System is required to protect the > descrambled work against copying If true, we MUST get this into the record. This explodes their lie that "Linux players are coming". There is NO way to protect the descrambled work against copying on an open-source OS like Linux without running "trusted" monitors and sound cards. You can _legally_ rewrite whatever parts of the OS are necessary. Nor can DVD player vendors restrict you from running the program on a "compromised" version of Linux. As someone said earlier, the copyright act grants computer users the right to install and run software. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 03:57:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA01446 for dvd-discuss-outgoing; Wed, 26 Jul 2000 03:57:25 -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 DAA01443 for ; Wed, 26 Jul 2000 03:57:24 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13HM3c-0000VJ-00; Wed, 26 Jul 2000 09:56:48 +0200 Received: from localhost by sites.inka.de with local id 13HM3c-00030V-00; Wed, 26 Jul 2000 09:56:48 +0200 Date: Wed, 26 Jul 2000 09:56:48 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Message-ID: <20000726095648.A11284@inka.de> References: <20000725170136.B4026@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <20000725170136.B4026@localhost>; from fenimore@roadrunner.com on Tue, Jul 25, 2000 at 05:01:36PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 05:01:36PM -0600, Paul Fenimore wrote: > 2. There is no protection because of an insideous attack I discovered > on a friend's DVD player, which I personally verified the feasability > of: the play button. Bang. The machine coughed up the work on demand. > > And what was stopping me from re-digitzing? Nothing. Well there is Macrovision, ableit very feeble. Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 04:41:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02119 for dvd-discuss-outgoing; Wed, 26 Jul 2000 04:41:03 -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 EAA02116 for ; Wed, 26 Jul 2000 04:40:58 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6Q8eL007919 for ; Wed, 26 Jul 2000 11:40:22 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 26 Jul 2000 11:40:21 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! In-Reply-To: <20000725180921.11927.qmail@web514.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 25 Jul 2000, Bryan Taylor wrote: >109(c) "Notwithstanding the provisions of section 106(5), the owner of >a particular copy lawfully made under this title, or any person >authorized by such owner, is entitled, without the authority of the >copyright owner, to display that copy publicly, either directly or by >the projection of no more than one image at a time, to viewers present >at the place where the copy is located." Was it even explicitly stated in the DMCA that it does not supercede this stuff? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 04:54:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA02263 for dvd-discuss-outgoing; Wed, 26 Jul 2000 04:54:40 -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 EAA02260 for ; Wed, 26 Jul 2000 04:54:38 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6Q8s1x09986 for ; Wed, 26 Jul 2000 11:54:01 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 26 Jul 2000 11:54:01 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Civil Remedies 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, 25 Jul 2000 Michael.A.Rolenz@aero.org wrote: >"remedial modification" of DeCSS...now that's an interesting idea.....how >about requiring that any future postings of DeCSS be in Cobol? Kaplan sure as hell wouldn't do this - the creator of DeCSS being out of his jurisdiction. On the other hand, this makes for some pretty damned funny possibilities for a pissed off judge. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 05:11:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA02944 for dvd-discuss-outgoing; Wed, 26 Jul 2000 05:11:44 -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 FAA02941 for ; Wed, 26 Jul 2000 05:11:42 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6Q9B6M12671 for ; Wed, 26 Jul 2000 12:11:07 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Wed, 26 Jul 2000 12:11:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case In-Reply-To: <20000726000943.26582.qmail@web510.mail.yahoo.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, 25 Jul 2000, Bryan Taylor wrote: >As the 9th Circuit says below, a holder of a copyright violates the >antitrust laws by "concerted and contractual behavior that threatens >competition." Does that sound like it applies here? No, since there is ample competition in the player market. On the other hand... Open source can be free (gratis) and feature rich and thus compete with just about anything in the market. Yet it isn't allowed, by the MPAA/DVD-CCA definition. Anti-trust usually deals with single monopolies. What's legalese for a coalition of monopolists keeping minority players out of the game and what's the part of US law dealing with this sort of thing? Of course, the MPAA/DVD-CCA's logic would be: you can obtain a licence and make a player. But since there is no patent, they cannot uphold a mandatory licencing policy. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 06:27:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA04233 for dvd-discuss-outgoing; Wed, 26 Jul 2000 06:27:46 -0400 Received: from falcon.prod.itd.earthlink.net (falcon.prod.itd.earthlink.net [207.217.120.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA04230 for ; Wed, 26 Jul 2000 06:27:45 -0400 Received: from naboo (user-2inib0u.dsl.mindspring.com [165.121.44.30]) by falcon.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id DAA04131 for ; Wed, 26 Jul 2000 03:27:10 -0700 (PDT) From: "Jim Taylor" To: Subject: [dvd-discuss] CSS patented Date: Wed, 26 Jul 2000 03:26:58 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D34@mail2.onetouch.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman, on Monday, July 24, 2000 9:32 AM, wrote > >The biggest flaw, IMO, is that if they had patented >CSS then their case really would be correct. But by >going the trade secret route they opened themselves >up to the possibility of reverse engineering. It's apparently a common misperception that CSS is not patented. Parts of CSS are patented. See http://www.patents.ibm.com/details?pn=US06021199__, http://www.patents.ibm.com/details?pn=US05915018_, and related patents. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 06:33:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA04350 for dvd-discuss-outgoing; Wed, 26 Jul 2000 06:33:07 -0400 Received: from falcon.prod.itd.earthlink.net (falcon.prod.itd.earthlink.net [207.217.120.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA04347 for ; Wed, 26 Jul 2000 06:33:06 -0400 Received: from naboo (user-2inib0u.dsl.mindspring.com [165.121.44.30]) by falcon.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id DAA08792 for ; Wed, 26 Jul 2000 03:32:30 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] DivX quality Date: Wed, 26 Jul 2000 03:32:18 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Tim Neu, on Monday, July 24, 2000 5:56 PM, wrote > >Somewhere down the line, it would be nice to ask the MPAA to demonstrate >the following from a DivX > >2. Please demonstrate DivX Surround Sound... (DivX would not have surround >sound but would only have [at best] stereo sound) DivX would have Dolby Surround matrix encoding (assuming stereo audio), even from a downmixed 5.1-channel Dolby Digital track. What it would not have would be discrete multichannel surround. >3. Please tell the court how many frames per second were removed in order >to make this DivX. Probably none. >I think it is important not to let the "perfect digital copies" argument >fly, when they talk about DivX. DivX does not compare to DVD, period. Absolutely true. But you need better supporting arguments. ;-) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 08:17:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA05761 for dvd-discuss-outgoing; Wed, 26 Jul 2000 08:17:06 -0400 Received: from smtp-out2.bellatlantic.net (smtp-out2.bellatlantic.net [199.45.39.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA05758 for ; Wed, 26 Jul 2000 08:17:05 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out2.bellatlantic.net (8.9.1/8.9.1) with SMTP id IAA01017 for ; Wed, 26 Jul 2000 08:16:24 -0400 (EDT) Message-Id: <4.1.20000726074744.0225a358@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Wed, 26 Jul 2000 08:17:45 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Authority (was roll credits) In-Reply-To: <20000726045938.20051.qmail@web509.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 At 09:59 PM 07/25/2000 -0700, Bryan Taylor wrote: > >--- Chris Moseng wrote: >> Having read Mr. Ariel Glenn's summary of the events today, I have to >> say I'm surprised that not once did the defense address the >> fundamental question of authority. > >They did initiate it, but Kaplan shut them down. His point (which is >pretty valid) is that there are no factual disputes about it -- it's >purely a question of law. He said something to the effect of 'there's >no contract with the end user' and 'whatever rights are transfered to >the user is purely a function of the Copyright Act and the DMCA'. Kaplan precluded evidence on the factual chain of authorization (or lack thereof) on the ground that "authority" was a question of law. Without the facts on which to base the legal conclusion, though, and without a definition or description of "authority" anywhere in 1201, one argument is that he's left with authority as it comes from the Copyright Act -- in which access control is not an exclusive right of the copyright holder. Thus because it's not explicitly denied, authority passes like other non-copyright rights (Paul's description), on sale of a copy of the work. If we can push Kaplan in that direction through the implausibility of other scenarios of authority, it could be a huge advance against a claimed access right. --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 Wed Jul 26 08:56:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA06410 for dvd-discuss-outgoing; Wed, 26 Jul 2000 08:56:44 -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 IAA06406 for ; Wed, 26 Jul 2000 08:56:42 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id IAA05020; Wed, 26 Jul 2000 08:56:07 -0400 Date: Wed, 26 Jul 2000 08:56:07 -0400 From: Jim Bauer Message-Id: <200007261256.IAA05020@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Authority to decode CSS ... Newsgroups: local.dvd-discuss In-Reply-To: <20000725223606.A12564@eldritchpress.org> References: <20000724214706.2355.qmail@web515.mail.yahoo.com> <4.2.2.20000725121451.00ddb940@pop.bellatlantic.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: >Yes. I am woefully unlearned about DVD and that technology, >so I went to the local bookstore and perused a 1998 book on DVD, >"DVD Demystified," by Jim Taylor, McGraw-Hill, ISBN 0-07-064841-7, >paperback. It was evidently written in 1997 or early 1998, >before the DMCA, and before the time the DVD-CCA had been set up. >Here is what he says about the CSS license: > >WHAT: > >Every CSS-compliant COMPUTER is required to have (under license): >- A CSS-licensed DVD-ROM drive with licensed authentication hardware >- CSS-licensed decoding hardware or software including authentication > and descrambling >- CSS-licensed video components >- regional management support >- protection of digital output >- protection of analog video output (Macrovision or equivalent) >- protection against copying descrambled files >- rejection of "no copies allowed" material on a recordable disc > >WHO: > >- the computer Operating System is required to protect the > descrambled work against copying >- application developers must get a CSS license if their apps > manipulate descrambled content >- disc manufacturers must license CSS and protect algorithm and keys >- drive makers must license CSS and provide authentication and key > obfuscation >- any maker of hardware or software that deals with the descrambled > data streams must protect the algorithm and keys, including TV > output graphics cards >- systems integrators and OEMs must also license CSS >- user doesn't need a license for CSS With all of these restrictions, who would ever want to have a DVD player? They are being marketted as these great things, but when it comes down to it, they are severly restricting the output quality. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 09:13:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA06936 for dvd-discuss-outgoing; Wed, 26 Jul 2000 09:13:08 -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 JAA06933 for ; Wed, 26 Jul 2000 09:13:07 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id JAA05095; Wed, 26 Jul 2000 09:12:33 -0400 Date: Wed, 26 Jul 2000 09:12:33 -0400 From: Jim Bauer Message-Id: <200007261312.JAA05095@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] DivX quality Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu In article you write: >Tim Neu, on Monday, July 24, 2000 5:56 PM, wrote > >>I think it is important not to let the "perfect digital copies" argument >>fly, when they talk about DivX. DivX does not compare to DVD, period. > >Absolutely true. But you need better supporting arguments. ;-) > Even the DVD is not a perfect copy of the original film. It is encoded with a lossy compression algorithm (MPEG). From the DVD there is no way you can ever re-generate a perfect copy of the film. Tossing DivX into the mix just make it so much worse. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 09:19:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA07335 for dvd-discuss-outgoing; Wed, 26 Jul 2000 09:19:45 -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 JAA07332 for ; Wed, 26 Jul 2000 09:19:45 -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 JAA01038 for ; Wed, 26 Jul 2000 09:19:09 -0400 (EDT) Message-Id: <4.1.20000726082248.021b5c28@law.harvard.edu> X-Sender: wseltzer@law.harvard.edu X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Wed, 26 Jul 2000 09:20:27 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] A huge THANK YOU! Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu After meeting with members of the EFF/Frankfurt Garbus defense team at the conclusion of trial yesterday, I want to pass on a tremendous thank you to everyone who has contributed to the forum. I think we've gotten some great insights and analyses from list participants, both directly through the amicus brief, trial declarations, and testimony, and indirectly, as many ideas from threads here have become parts of briefs and arguments in court. I'm waiting to hear more about where we can be most helpful in the next steps. Both sides are to file post-trial briefs by August 8. They've been asked to address issues of particular concern to Kaplan (1) the likely efficacy/futility of an injunction; (2) Summers v. Tice on allocation of the harm among multiple ripper utilities and burden of proof; and (3) evidentiary issues on the extent to which Kaplan can conclude from hearsay that decoded DVDs are available over the Internet, and will probably include additional legal argument on points such as "authority of the copyright owner" and the import of First Amendment protection for code. In the meantime, analysis of the trial transcripts and development of arguments continue to be very helpful. Thanks again! --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 Wed Jul 26 10:17:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA09799 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:17:56 -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 KAA09751 for ; Wed, 26 Jul 2000 10:17:41 -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 KAA03028; Wed, 26 Jul 2000 10:16:45 -0400 Message-Id: <200007261416.KAA03028@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-reply-to: Your message of "Tue, 25 Jul 2000 23:32:33 EDT." <4.1.20000725230657.019c7cf0@law.harvard.edu> Date: Wed, 26 Jul 2000 10:16:15 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: : Touretzky gave brilliant testimony this morning to the legal irrelevance of : a distinction between source and object code, comparing source, object, and : assembly code and testifying to the possibility of conversing in object : code. (I wasn't there for the morning session, but read the transcript : afterwards (not yet online).) His testimony was enough to make Kaplan say : at the trial's end that he "found Prof. Touretzky's statements today : persuasive and educational ... [and would find it] untenable that computer : code of any kind has no expressive content." That is, Kaplan seemed : convinced that code is protected First Amendment speech. : : Kaplan said he was still puzzled by what to do with the speech, however, : asking what analogy he could draw with the burning of draft cards : (O'Brien), or other speech pigeonholes (such as expressive conduct, : fighting words, commercial speech, obscenity). His understanding of : Touretzky appeared to be a huge step forward for the First Amendment argument I have not seen the judges remarks. I would like to point out, however, that if O'Brien is applicable, then the problem is changed to intermediate scrutiny and the burden of upholding the regulation, which is on the plaintiffs, is not as great as it is in a pure speech case. But the burden is still there, which stongly suggests that 1201(a)(2) should be construed, if possible, so as to avoid the issue. One possible reading would be that the section applies to ``black boxes'' not to software. I do not, however, see how O'Brien can be applied to software. In O'Brien you had the physical burning of the draft card, an act that would normally not be seen as speech of any kind, but which was used to express a point of view. In the case of publishing software, however, all there is the expression of information, the publication of the work, and there is no tangible act like burning a floppy disk that contains a copy of the software. The trouble is that there are lots of quotes from lower court cases relying on O'Brien that sound very bad when taken out of context---the context, more often than not being some sort of land use regulation. I think that they can all be explained away as ``time, place, and manner'' cases. I am sending a copy of this message to the lawyers for Bernstein and Junger who have had to become experts on O'Brien and how it applies to software. They should be able to supply some hints and perhaps a cite or two as to how to deal with )'Brien. -- 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 Jul 26 10:22:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10300 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:22:05 -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 KAA10288 for ; Wed, 26 Jul 2000 10:22:03 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13HS3s-0002KS-00; Wed, 26 Jul 2000 16:21:28 +0200 Received: from localhost by sites.inka.de with local id 13HS3t-0005pU-00; Wed, 26 Jul 2000 16:21:29 +0200 Date: Wed, 26 Jul 2000 16:21:29 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000726162129.A21159@inka.de> References: <4.1.20000725230657.019c7cf0@law.harvard.edu> <200007261416.KAA03028@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <200007261416.KAA03028@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Wed, Jul 26, 2000 at 10:16:15AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 10:16:15AM -0400, Peter D. Junger wrote: > I have not seen the judges remarks. Talking of which, is something holding up the last day's transcript? Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 10:37:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10732 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:37:15 -0400 Received: from dial144.roadrunner.com (dial144.cybermesa.com [209.12.75.144] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA10728 for ; Wed, 26 Jul 2000 10:37:12 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id IAA00742 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 08:37:36 -0600 Date: Wed, 26 Jul 2000 08:37:34 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Message-ID: <20000726083733.B643@localhost> References: <20000725170136.B4026@localhost> <20000726095648.A11284@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000726095648.A11284@inka.de>; from mail@risctaker.inka.de on Wed, Jul 26, 2000 at 09:56:48AM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 09:56:48AM +0200, Sham Gardner wrote: > On Tue, Jul 25, 2000 at 05:01:36PM -0600, Paul Fenimore wrote: > > 2. There is no protection because of an insideous attack I discovered > > on a friend's DVD player, which I personally verified the feasability > > of: the play button. Bang. The machine coughed up the work on demand. > > > > And what was stopping me from re-digitzing? Nothing. > > Well there is Macrovision, ableit very feeble. A. Macrovision is *not* stopping me. B. There is no "macrovision" on the image projected by the screen. Now I have to sync frame rates, but there is no macrovision to consider. C. There is no statutory requirement that outputs generate macrovision gacking of the signal, 1201(k) is about inputs. The presence of macrovision on the output of a DVD player is yet another gacking of the hardware in response to *contractual* conditions imposed by the CSS license, not a technical or statutory requirement. "Feeble" has got nothing to do with it. It could be iron-clad, and so long as I can see it, I can copy it. No amount of effort *on technological solutions* can ever eliminate copying. That doesn't make copyright law pointless, but it does make 1201(b) something very different than what Congress though they were passing. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 10:40:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA10875 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:40:53 -0400 Received: from dial144.roadrunner.com (dial144.cybermesa.com [209.12.75.144] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA10872 for ; Wed, 26 Jul 2000 10:40:50 -0400 Received: (from paul@localhost) by dial144.roadrunner.com (8.8.7/8.8.7) id IAA00751 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 08:41:14 -0600 Date: Wed, 26 Jul 2000 08:41:13 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! Message-ID: <20000726084113.C643@localhost> References: <20000725180921.11927.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: ; from ssyreeni@cc.helsinki.fi on Wed, Jul 26, 2000 at 11:40:21AM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 11:40:21AM +0300, Sampo A Syreeni wrote: > On Tue, 25 Jul 2000, Bryan Taylor wrote: > > >109(c) "Notwithstanding the provisions of section 106(5), the owner of > >a particular copy lawfully made under this title, or any person > >authorized by such owner, is entitled, without the authority of the > >copyright owner, to display that copy publicly, either directly or by > >the projection of no more than one image at a time, to viewers present > >at the place where the copy is located." > > Was it even explicitly stated in the DMCA that it does not supercede this > stuff? 1201(c): (c) Other Rights, Etc., Not Affected. - (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title. Section 109 is part of fair use, which runs from section 107 throught section 121. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 10:43:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11033 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:43:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA11030 for ; Wed, 26 Jul 2000 10:43:15 -0400 Received: by aero.org id <17112-2>; Wed, 26 Jul 2000 07:42:26 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdDLAa07380; Wed Jul 26 07:42:08 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 07:41:54 -0700 Subject: RE: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 07:41:53 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 07:42:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's too logical. The lawyers would argue that there is no precedence.... Richard Hartman @eon.law.harvard.edu on 07/25/2000 06:08:50 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: Subject: RE: [dvd-discuss] Shotgun Analogy > -----Original Message----- > From: Consilgere@cs.com [mailto:Consilgere@cs.com] > Sent: Monday, July 24, 2000 9:05 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Shotgun Analogy > > > It does have merit to it, our own government regards encryption as an > armament, why not take the next step and extend it the constitutional > freedoms armaments get? > Oh. My. God. .... That is so perverse that it might be worth trying! -- -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 Jul 26 10:50:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11165 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:50:40 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA11162 for ; Wed, 26 Jul 2000 10:50:36 -0400 Received: by aero.org id <17124-7>; Wed, 26 Jul 2000 07:49:46 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdOMAa07380; Wed Jul 26 07:49:38 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 07:45:09 -0700 Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 07:45:08 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 07:49:41 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's why I'd rather pay extra for a letterbox version of a film even if it is smaller. For example, that famous scene withDustin Hoffman and Anne Bancroft' leg in "The Graduate", used in the posters, LP cover etc, is not in the video release. They couldn't crop it for the different sized screen so they edited around it. Ron Gustavson @eon.law.harvard.edu on 07/25/2000 07:25:38 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable Michael.A.Rolenz@aero.org wrote: >BTW - I'm not certain that digital is better or that DVD beats VHS....Does >anybody have a DVD copy of Forbidden Planet and can check this? I have two Well the real test is still a theatrical showing on a BIG screen (not some 12plex.) We've already become conditioned to accept so many compromises that were never forseen by film directors and cinematographers. It's a stretch to claim that a DVD or VHS translation is better than a poor facsimile of an original film. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 10:52:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11208 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:52:40 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA11205 for ; Wed, 26 Jul 2000 10:52:37 -0400 Received: by aero.org id <17132-5>; Wed, 26 Jul 2000 07:51:48 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKNAa07380; Wed Jul 26 07:51:27 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 07:50:22 -0700 Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 07:50:21 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 07:51:35 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu True...that's another aspect of this case. Copyright does not mean that the holder can PREVENT illegal copying it only means that he can STOP it afterwards and get damages. the CSS is a sort of legal self help before the fact albeit not quite as egregious as the "you have attempted an illegal copy...trashing your harddisk" messages that people claimed to have gotten with copy protected software (I've never met anybody who actually got that message only people who claimed that they knew someone....maybe an urban legend). The revoking of keys and all that is legal self help. Ditto the "protection" Eric Eldred @eon.law.harvard.edu on 07/25/2000 07:57:10 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 1, p. 7: decrypted and exchangeable On Tue, Jul 25, 2000 at 05:01:36PM -0600, Paul Fenimore wrote: > Day 1, p. 7: > > 9 Once a film is decrypted and exchangeable on the Net ^^^^^^^^^^^^ > 10 for down loading, that film's protection is lost for good. No, it just means your 120 "antipiracy" investigators have to do their work, once the film has actually been *exchanged*. Of course, you might have to upgrade their computers and network connections a bit, say to individual T3 lines! If I bought a DVD could I resell it or give it away? Why would that cause the copyright protection to be lost? Why does it have to be decrypted to be exchanged? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 10:54:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA11250 for dvd-discuss-outgoing; Wed, 26 Jul 2000 10:54:05 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA11246 for ; Wed, 26 Jul 2000 10:54:03 -0400 Received: by aero.org id <17096-7>; Wed, 26 Jul 2000 07:53:04 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdSNAa07380; Wed Jul 26 07:52:49 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 07:51:15 -0700 Subject: Re: [dvd-discuss] cryptome To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 07:51:12 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 07:52:56 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Does the FBI investigate DoS? Jim Miller @eon.law.harvard.edu on 07/25/2000 08:29:52 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] cryptome Someone has been putting a DoS attack on his site, oddly enough, just days after the FBI asked him to take down a document and he refused. --Russell On Tue, 25 Jul 2000, you wrote: > Has anyone been able to get through to cryptome recently? Mr. Young, Mr. > Young, fly away home! Your website is unresponsive, and I can't bear it! > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:03:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11438 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:03:43 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA11435 for ; Wed, 26 Jul 2000 11:03:42 -0400 Received: by aero.org id <17112-4>; Wed, 26 Jul 2000 08:02:53 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdIOAa07380; Wed Jul 26 08:02:50 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 07:54:58 -0700 Subject: Re: [dvd-discuss] CSS patented To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 07:54:57 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 08:02:52 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Interesting.....the question of theft of trade secrets starts to become moot...also the honesty of the plaintiffs in bringing this suit. They can't claim both or hide one and claim the other. "Jim Taylor" @eon.law.harvard.edu on 07/26/2000 03:29:32 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: cc: Subject: [dvd-discuss] CSS patented Richard Hartman, on Monday, July 24, 2000 9:32 AM, wrote > >The biggest flaw, IMO, is that if they had patented >CSS then their case really would be correct. But by >going the trade secret route they opened themselves >up to the possibility of reverse engineering. It's apparently a common misperception that CSS is not patented. Parts of CSS are patented. See http://www.patents.ibm.com/details?pn=US06021199__, http://www.patents.ibm.com/details?pn=US05915018_, and related patents. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:05:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11497 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:05:59 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA11492 for ; Wed, 26 Jul 2000 11:05:56 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 26 Jul 2000 18:03:49 +0300 Message-ID: <39804F9A.BB1D19A@easybase.com> Date: Thu, 27 Jul 2000 18:04:58 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) References: <4.1.20000725230657.019c7cf0@law.harvard.edu> <200007261416.KAA03028@samsara.law.cwru.edu> <20000726162129.A21159@inka.de> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id LAA11494 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yep, Any info when it will be available? The link on openlaw goes to a 404: (page not available) on eff site. Sham Gardner wrote: > On Wed, Jul 26, 2000 at 10:16:15AM -0400, Peter D. Junger wrote: > > I have not seen the judges remarks. > > Talking of which, is something holding up the last day's transcript? > > Sham > > -- > Constantly updated links to coverage of the New York case commencing > on July 17th 2000: > http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:20:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA11905 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:20:04 -0400 Received: from dial102.roadrunner.com (dial102.cybermesa.com [209.12.75.102] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA11902 for ; Wed, 26 Jul 2000 11:20:00 -0400 Received: (from paul@localhost) by dial102.roadrunner.com (8.8.7/8.8.7) id JAA01166 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 09:20:23 -0600 Date: Wed, 26 Jul 2000 09:20:22 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p.24: access control and copy control Message-ID: <20000726092021.D643@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 Day 1, p. 24, Shamos: 18 Q. What is your understanding of what CSS is? 19 A. CSS is an access control and copy protection mechanism 20 that's utilized to control access to and the copying of 21 copyrighted works that appear on DVDs. So which is this lawsuit about? Access control or copy control? If it is "access", then quit talking about copying. The statute provides two sections 1201(a) and (b), the first for access, the second for exclusive rights (i.e. copying). If it is about copying, why did you file this suit under 1201(a)? Also, Kaplan has on various occasions made the same error of conflation: on the one hand access control is "prophylactic", I assume to infringement. This reads 1201(a) and (b) to be the same thing when they are not; _or_ (paraphrasing from Jan. 20th) "this is not about infringement". These two are exclusive possibilities. Pick one, and stick to it. 22 Q. What is your understanding of what CSS does? 23 A. Well, CSS is a comprehensive scheme that involves 24 contractual relations, hardware and computer software. What 25 CSS on the hardware level does is enables a licensee of the p. 25 1 system to put copyrighted material on a disk so that it is in 2 scrambled form and cannot be descrambled unless one knows the 3 secret. Second point first. It is *absolutely false* that one must know the secret to descramble the work. Pushing the "play" button requires no knowledge of the "secret". Building a _useful_ DVD player (i.e. one that will play material from the Big Eight studios) does require knowledge of the "secret" == CSS. Building working player devices or writing player programs is different from using those devices or programs. First point second. "CSS" may be a "comprehensive scheme", but federal statute only offers protection to the technological portion of that bundle. 1201(a) is limited to technological measures; it provides no protection for contractual measures that limit the kinds of players that can be build and programs that can be written. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:25:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12048 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:25:55 -0400 Received: from dial102.roadrunner.com (dial102.cybermesa.com [209.12.75.102] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA12045 for ; Wed, 26 Jul 2000 11:25:52 -0400 Received: (from paul@localhost) by dial102.roadrunner.com (8.8.7/8.8.7) id JAA01175 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 09:26:13 -0600 Date: Wed, 26 Jul 2000 09:26:13 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 1, p.25: authorized disks and players Message-ID: <20000726092612.E643@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 Day 1, p. 25, Shamos: 4 Q. In what kind of DVD players can authorized disks be 5 played? Is this "authorized" referring to authority under 106(1)? 6 A. Well, authorized disks are supposed to be able to be 7 played only in what are referred to as compliant players, 8 players manufactured by licensees of CSS. 9 Q. And what kind of disks will authorized players play? "Authorized" in this question has nothing to do with the exclusive right to do and to authorized under section 106, so it is different authority than on lines 4 and 5 above. Furthermore, it cannot be the authority mentioned in section 1201(a) as that applies to *acts* of descrambling which protect "access", an as-yet to be defined word by either the court or the plaintiffs. (I'm not saying they fail to _assume_ a definition of "access", they do, I'm saying they haven't spelled it out.) 10 A. Well, to my knowledge authorized players play compliant 11 disks. What category do DVD disks that haven't been CSS'ed fall into? How did we get onto "compliant"? What is a "compliant disk"? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:38:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12289 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:38:12 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA12286 for ; Wed, 26 Jul 2000 11:38:02 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 26 Jul 2000 18:36:19 +0300 Message-ID: <39805739.F930E2DA@easybase.com> Date: Thu, 27 Jul 2000 18:37:30 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) References: <397F3B84.96B2A11D@easybase.com> <397F41DE.F207C3FB@easybase.com> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id LAA12287 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Replying to myself once again, and although the trial has concluded (may be this is still in time before August 8) there is another issue with executable source: Computers will soon be able, (and are actually beginning to be able now) to execute speach. With the advancement of speach recognition technologies, one could make an interpreter that would interprete voice & execute it. If any kind of restriction is placed on any source code, the same restriction would definitely have to be put on the same code when pronounced as speach by human, meaning that speaking up certain phrases would be prohibited under such ruling. This is simply because speach would be just one other way to enter code into computer. Moshe Vainer wrote: > Actually, replying to myself, > the demonstration would be even more easily done by wrapping the > compilation, execution and the source code in a shell script. > I know this is easily done on linux, i am not sure this can be easily done > on windows with batch files, but i believe Visual Studio has command > line equivalents of make (nmake etc...) and echo can be used inside batch file > to echo the source code to a temporary c file, then compile, and run the program > on each invokation of the batch file. > This would effectively show that a human readable source of batch-DeCss is > also readily executable, and that the distinction between source code > and executable is moot. > > Moshe Vainer wrote: > > > Reading David S. Touretzky declaration, It seems that the failure to > > communicate that there is no significant difference between source code and > > executable code could be easily explained to the Judge in this case (and other cases) > > 1. if the defense would mention > > interpreted languages > > This seems to me an area that all those testifying on defense' side simply failed to > > mention. > > > > 2. A great demonstration would be to rewrite decss in some interpreted language such as > > perl, > > and then show a demonstration where a clear text (source code) is directly executable and > > is actually working in much the same way as compiled version. > > > > Although 2. would be too late for this case, it might be done on an appeal if and when > > that would be. > > Point 1. however i hope can be raised right now. > > > > Rgrds, > > Moshe Vainer > > moshev@easybase.com > > > > P.S. I hope the defense reads this, and can use it asap. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:41:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12505 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:41:33 -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 LAA12501 for ; Wed, 26 Jul 2000 11:41:32 -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:2.21) with ESMTP id LAA28541 for ; Wed, 26 Jul 2000 11:40:58 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA18126; Wed, 26 Jul 2000 11:40:57 -0400 (EDT) Date: Wed, 26 Jul 2000 11:40:57 -0400 (EDT) Message-Id: <200007261540.LAA18126@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Michael A. Rolenz writes: > Interesting.....the question of theft of trade secrets starts to become > moot...also the honesty of the plaintiffs in bringing this suit. They can't > claim both or hide one and claim the other. But why can't they consistently claim different protections for different parts of the mechanism (a patent on their "cipher" and trade secret protection for the player keys)? rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 11:46:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA12629 for dvd-discuss-outgoing; Wed, 26 Jul 2000 11:46:15 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA12626 for ; Wed, 26 Jul 2000 11:46:10 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 26 Jul 2000 18:44:24 +0300 Message-ID: <3980591F.F47E649A@easybase.com> Date: Thu, 27 Jul 2000 18:45:35 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented References: <200007261540.LAA18126@soggy-fibers.ai.mit.edu> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id LAA12627 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Robert S. Thau" wrote: > Michael A. Rolenz writes: > > Interesting.....the question of theft of trade secrets starts to become > > moot...also the honesty of the plaintiffs in bringing this suit. They can't > > claim both or hide one and claim the other. > > But why can't they consistently claim different protections for > different parts of the mechanism (a patent on their "cipher" and trade > secret protection for the player keys)? > > rst Another question would be do they have patent on CSS in Norway, or is it only a US Patent. And if it's only a US Patent does that restrict only the use of DeCSS in US or the distribution of it? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:10:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13467 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:10:49 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13464 for ; Wed, 26 Jul 2000 12:10:47 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id LAA04583 for ; Wed, 26 Jul 2000 11:10:13 -0500 (CDT) Message-ID: <397F0D2D.66A5B1E6@uic.edu> Date: Wed, 26 Jul 2000 11:09:18 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] roll credits 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 Chris Moseng wrote: > Having read Mr. Ariel Glenn's summary of the > events today, I have to say I'm surprised that > not once did the defense address the fundamental > question of authority. I share your surprise, but I think I understand. If the defense can convince the judge that DeCSS is protected by the First Amendment, this is a HUGE victory. The best. In other words, if the problem with CSS is with the construction of the licensing terms, then the MPAA can fix that. If the problem with CSS is that enforcing it is unconstitutional, they are up the creek. - John From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:12:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13560 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:12:29 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13557 for ; Wed, 26 Jul 2000 12:12:27 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA06819 for ; Wed, 26 Jul 2000 11:11:28 -0500 Message-ID: <397F08C1.CDA4B75E@mninter.net> Date: Wed, 26 Jul 2000 10:50:25 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented 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 Jim Taylor wrote: > It's apparently a common misperception that CSS is not patented. > Parts of CSS are patented. See > http://www.patents.ibm.com/details?pn=US06021199__, > http://www.patents.ibm.com/details?pn=US05915018_, and > related patents. Which begs the question, why isn't the patent holder suing for patent infringement? Because it would certify anticompetitive tying. If they proved in court that movies from the studios could only be played on players that implemented a patented mechanism, and that that patent was actively being defended, they would open themselves to anti-trust scrutiny. While I know nothing about actual patent law, I would argue the patent is an unenforceable one, in practical terms. And I'll even put money on the notion that Judge Kaplan's firm went through all of this with Time Warner. They're some of the many lawyers who helped the studios devise this set of smoke and mirrors to thwart the public from holding the studios accountable for the tying arrangement. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:15:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13685 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:15:28 -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 MAA13682 for ; Wed, 26 Jul 2000 12:15:26 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id LAA02716 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 11:14:51 -0500 Date: Wed, 26 Jul 2000 11:14:50 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000726111450.A2656@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000725041717.28269.qmail@web509.mail.yahoo.com> <20000725012441.A11596@eldritchpress.org> <20000725105849.A4358@thud.reric.net> <20000725184632.A26865@inka.de> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000725184632.A26865@inka.de>; from mail@risctaker.inka.de on Tue, Jul 25, 2000 at 06:46:32PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Tue, Jul 25, 2000 at 06:46:32PM +0200, Sham Gardner wrote: > On Tue, Jul 25, 2000 at 10:58:49AM -0500, Eric Seppanen wrote: > > Can Matthew Pavlovich's work for the defense be read as LiVid being in > > "active concert or or participation" with 2600? If so, look for them to > > try and shut down LiVid in about a month... > > As far as I can tell LiViD's site is linuxvideo.org and hosted in Germany, > out of reach of the DMCA as such. That obviously didn't stop them from going > after Jon Johansen. OK, but what if they claim personal jurisdiction over Matthew, and either try to prevent him from actively working on LiViD? Two ways that I can think of: (1) saying by doing CVS commits he's trafficking in violation of the injunction, or (2) claiming LiViD is "his" server and trying to shut it down directly on that claim. It seems to me that leaving the current wording of the injunction alone is just asking for trouble, and the best way of avoiding trouble for LiViD is by fighting for more reasonable language. I think everyone here would agree that LiViD is of far greater importance than DeCSS, and ignoring effects to the LiViD project while defending DeCSS might not be a good idea. Eric From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:23:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA13842 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:23:09 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA13839 for ; Wed, 26 Jul 2000 12:23:07 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id LAA08472 for ; Wed, 26 Jul 2000 11:22:15 -0500 Message-ID: <397F0B43.C138398D@mninter.net> Date: Wed, 26 Jul 2000 11:01:07 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p.24: access control and copy control References: <20000726092021.D643@localhost> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > First point second. "CSS" may be a "comprehensive scheme", but > federal statute only offers protection to the technological portion > of that bundle. 1201(a) is limited to technological measures; it > provides no protection for contractual measures that limit the kinds > of players that can be build and programs that can be written. This is well put. You've described exactly why people can *implement CSS without necessarily *circumventing it. Which is what DeCSS does. The studios will argue that every implementation not licensed by the DVDCCA is a tool for circumvention because it is not licensed. Unfortunately for them, every implementation of CSS that can deencrypt a DVD does so with the authority of the copyright holder implicit in having the disk key on the DVD. Once the claims for authorization leave the bounds of the copyrighted work or the key associated with it, into contracts with player manufacturers, into "unauthorized implementations" of CSS, or into "stolen" player keys, you've got all the problems we've identified before. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:34:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14009 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:34:13 -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 MAA14006 for ; Wed, 26 Jul 2000 12:34:10 -0400 Message-ID: <20000726163255.576.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Wed, 26 Jul 2000 09:32:55 PDT Date: Wed, 26 Jul 2000 09:32:55 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] A huge THANK YOU! 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: > After meeting with members of the EFF/Frankfurt Garbus defense team > at the conclusion of trial yesterday, I want to pass on a tremendous > thank you to everyone who has contributed to the forum. I think > we've gotten some great insights and analyses from list participants, > both directly through the amicus brief, trial declarations, and > testimony, and indirectly, as many ideas from threads here have > become parts of briefs and arguments in court. I think it's safe for me to express, what I'm sure is a unanimous opinion here, that we would like to thank Mr. Garbus, Mr. Hernstein and the rest of the litigation team for a superb job under extraordinary pressure. > I'm waiting to hear more about where we can be most helpful in the > next steps. Both sides are to file post-trial briefs by August 8. Does the defense team think it would be valuable for us to submit another amicus brief? > In the meantime, analysis of the trial transcripts and development of > arguments continue to be very helpful. How can we be the most valuable? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 12:43:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA14291 for dvd-discuss-outgoing; Wed, 26 Jul 2000 12:43:00 -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 MAA14288 for ; Wed, 26 Jul 2000 12:42:58 -0400 Message-ID: <20000726164153.1232.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Wed, 26 Jul 2000 09:41:53 PDT Date: Wed, 26 Jul 2000 09:41:53 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! 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: > 1201(c): > > (c) Other Rights, Etc., Not Affected. - > (1) Nothing in this section shall affect rights, remedies, > limitations, or defenses to copyright infringement, > including fair use, under this title. > > Section 109 is part of fair use, which runs from section 107 throught > section 121. I generally think of First Sale as defined in section 109 is a distinct concept from fair use, which is just 107. Is this wrong? __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 13:06:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15156 for dvd-discuss-outgoing; Wed, 26 Jul 2000 13:06:03 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15153 for ; Wed, 26 Jul 2000 13:06:02 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.42.8b199be (4367) for ; Wed, 26 Jul 2000 13:04:47 -0400 (EDT) Message-ID: <42.8b199be.26b0742e@cs.com> Date: Wed, 26 Jul 2000 13:04:46 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu If the government already acknowldges its armament status, is precedent really necessary? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 13:07:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15280 for dvd-discuss-outgoing; Wed, 26 Jul 2000 13:07:48 -0400 Received: from mtiwmhc24.worldnet.att.net (mtiwmhc24.worldnet.att.net [204.127.131.49]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA15276 for ; Wed, 26 Jul 2000 13:07:44 -0400 Received: from [12.88.194.76] by mtiwmhc24.worldnet.att.net (InterMail vM.4.01.02.39 201-229-119-122) with ESMTP id <20000726170637.COSD1468.mtiwmhc24.worldnet.att.net@[12.88.194.76]> for ; Wed, 26 Jul 2000 17:06:37 +0000 Message-Id: Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Date: Wed, 26 Jul 2000 13:05:08 -0400 To: dvd-discuss@eon.law.harvard.edu From: Eddan Katz Subject: [dvd-discuss] Day 6 Trial Transcript Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The transcript of the sixth and final day of court proceedings in MPAA v. 2600 is now available at: http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000725_ny_tr ial_transcript.html -Eddan Katz EFF Intern From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 13:18:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA15857 for dvd-discuss-outgoing; Wed, 26 Jul 2000 13:18:20 -0400 Received: from web116.yahoomail.com (web116.yahoomail.com [205.180.60.89]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA15854 for ; Wed, 26 Jul 2000 13:18:18 -0400 Received: (qmail 874 invoked by uid 60001); 26 Jul 2000 17:17:35 -0000 Message-ID: <20000726171735.873.qmail@web116.yahoomail.com> Received: from [128.122.253.144] by web116.yahoomail.com; Wed, 26 Jul 2000 10:17:35 PDT Date: Wed, 26 Jul 2000 10:17:35 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: [dvd-discuss] DVD Trial Testimony Ends - 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 Subject: DVD Trial Testimony Ends - The URL is http://www.techrepublic.com/article.jhtml?id=r00120000726nws03.htm&page=1 __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 13:46:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16227 for dvd-discuss-outgoing; Wed, 26 Jul 2000 13:46:16 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16221 for ; Wed, 26 Jul 2000 13:45:41 -0400 Date: Wed, 26 Jul 2000 10:42:30 -0700 Message-Id: <200007261042.AA1683554980@mail.virtualrecordings.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii From: "Robin Gross" To: , , Subject: [dvd-discuss] EFF Detonates Mind Bomb in Court on Final Day of DVD Trial X-Mailer: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu EFF DVD Update: July 25, 2000 Universal City Studios, et al v. 2600 Magazine EFF Detonates Mind Bomb in Court on Final Day of DVD Trial EFF's DVD defense team rested its case on Tuesday in litigation over the movie studios' attempt to ban DeCSS software that enables people to play DVDs on their computers. David Touretzky, a computer science professor at Carnegie Mellon University testified for the defense explaining the inherently expressive nature of computer code. Touretzky created a "Gallery of CSS Descramblers" on his university Web site illustrating a multitude of ways that the idea of DeCSS can be expressed using various languages - from plain English to source code to assembly language, etc. He walked the court through a step by step illustration, demonstrating how a series of 1's and 0's taken from one rendition of the code actually communicate a specific idea expressed in the English or C-source code versions of the software. Touretzky informed the court that computer code is the means by which programmers communicate to one another with precision so banning DeCSS will inevitably have a chilling effect on his ability to express himself. Touretzky explained how source and object code really convey the same idea - only expressed differently, and cautioned the court against differentiating between different forms of speech (including computer code) for purposes of First Amendment protection. Visibly moved by the compelling testimony, at one point Judge Kaplan got out of his chair and paced back and forth, listening intently to the professor's mind blowing explanation. When Touretzky was finished, the judge thanked him for his testimony, saying it had been "illuminating", "important", and that he was "hoping to hear it" during the course of the trial. After both parties rested their case, Judge Kaplan said that his DMCA analysis had likely not changed since he issued the injunction in January.. However, "I think one thing probably has changed with respect to the constitutional analysis," Kaplan stated, "I really find what Professor Touretzky had to say today extremely persuasive and educational about computer code." EFF's defense team also called Andrew Appel, a Princeton University computer science professor and Michael Einhorn, Columbia University economist. Chris DiBona from the Silicon Valley Linux Users' Group and VA Linux Evangelist, and Olegario Craig of the University of Massachusetts also rounded out the testimony defending 2600 Magazine's right to publish the code on the final day of testimony. Now that the trial is complete, EFF's defense team will draft and exchange legal briefs with the studios' lawyers on August 8 based upon the facts that came out at trial. After receiving the legal briefs and hearing oral argument (TBD) Judge Kaplan will make his determination as to the legality of the DeCSS software created by Jon Johansen. Professor Touretzky's Gallery of CSS Descramblers: http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html Essay, "Source vs. Object Code: A False Dichotomy" by David Touretzky: http://www.cs.cmu.edu/~dst/DeCSS/object-code.txt Transcript of July 25, 2000 trial: http://www.eff.org/IP/Video/MPAA_DVD_cases/20000725_ny_trial_transcript.html An index of the DVD updates can be found at: http://www.eff.org/IP/Video/dvd_updates_archive.html EFF's archive of MPAA v 2600 litigation: http://www.eff.org/IP/Video/MPAA_DVD_cases/ You can subscribe to EFF's mailing list to receive the regular DVD updates. To subscribe, email and put this in the body: subscribe cafe-news --------------------------------------------------------------- The Electronic Frontier Foundation ( http://www.eff.org ) is the leading global nonprofit organization linking technical architectures with legal frameworks to support the rights of individuals in an open society. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. EFF is a member-supported organization and maintains one of the most-linked-to Web sites in the world. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 13:57:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16394 for dvd-discuss-outgoing; Wed, 26 Jul 2000 13:57:04 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA16391 for ; Wed, 26 Jul 2000 13:57:02 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QGX5>; Wed, 26 Jul 2000 14:01:30 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4E99@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorization!!! Date: Wed, 26 Jul 2000 14:01:28 -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 On Tue, 25 Jul 2000, Bryan Taylor wrote: >109(c) "Notwithstanding the provisions of section 106(5), the owner of >a particular copy lawfully made under this title, or any person >authorized by such owner, is entitled, without the authority of the >copyright owner, to display that copy publicly, either directly or by >the projection of no more than one image at a time, to viewers present >at the place where the copy is located." YAY! This is the coup de grace on the P's argument. "At the place where the copy is located" -- this is the only place where CSS even remotely does something the law allows. By access the special encrypted key block, there is a side effect in that CSS uses technology to the best of its ability to determine that the physical DVD is present. Now, so does the LiViD player. Hmmm, the statute says that you do not need the authority of the copyright owner to view the work. So the thing that the LiViD player doesn't, and by extension, the whole LiViD player must be allowed. This means, even if you completely buy the P's argument that DeCSS in the LiViD player is without the authority of the copyright owner, it does not matter one hill of beans. Now, the court could even with this argument find that the DeCSS application violated the DMCA. But once the component is inside of the LiViD player, no claim of illegality can pass muster. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 14:34:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16894 for dvd-discuss-outgoing; Wed, 26 Jul 2000 14:34:32 -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 OAA16891 for ; Wed, 26 Jul 2000 14:34:23 -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 OAA12121 for ; Wed, 26 Jul 2000 14:33:41 -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 OAA00222 for ; Wed, 26 Jul 2000 14:29:53 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <4.1.20000726082248.021b5c28@law.harvard.edu> References: <4.1.20000726082248.021b5c28@law.harvard.edu> Date: Wed, 26 Jul 2000 14:29:48 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Summers v. Tice and hearsay Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id OAA16892 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I propose that there is a close relationship between issues 2 and 3 on which Judge Kaplan is requesting briefs: >(2) Summers v. Tice on allocation of the harm among multiple ripper >utilities and burden of proof; >and (3) evidentiary issues on the extent to which Kaplan can >conclude from hearsay that decoded DVDs are available over the >Internet The essence of Summers v. Tice is fairness: "The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all..." Part of the reason hearsay is generally excluded is also fairness: the other side would be denied the opportunity to cross examine the person who made the statements offered as proof. Thus there are issues of fairness on both sides of the admissibility question that must be weighed. In the present case, the only "evidence" of injury was collected by an experienced investigator, Ms. Mikhail Reider, who received "specialized training in Internet investigations" from the Department of Justice and from the High Technology Crime Investigators Association [Day 4, p. 649, line 19]. At the time Ms. Reider was working for an organization, MPAA, with near limitless resources and addressing a problem that MPAA claims threatens their very existence. Collecting actual, as opposed to hearsay evidence would have required Ms. Reider to click a few buttons and download a large file. In fact, it would have involved *exactly* the same steps plaintiffs claim the general public will do routinely in downloading pirated movies. As far as I know, no explanation has been offered by plaintiffs for this failure. Indeed, it is possible that plaintiffs have not produced copies of the allegedly posted movies because they fear the defense might be able to demonstrate that the files in question were not decoded by DeCSS. Ms. Reider's evasive conduct during cross-examination, including her professed inability to remember even if she had written a report on her investigation (less than a year ago), could lead a reasonable person to suspect she was hiding something. The same sensitivity to fairness that motivates Sommers should shield the defendants from the unreasonable burden of refuting evidence that plaintiffs' trained investigator could have easily collected, but didn't. An analogous situation in the Sommers context might be a shooting case where the only evidence of injury is testimony by a forensic pathologist hired by plaintiff who interviewed the attending physician and testifies that the physician said the wound was caused by a single shotgun pellet. The pathologist also admits that he was offered the pellet itself but declined to take it. Would we admit his hearsay evidence AND place the burden of proof on the defendant to show it wasn't his shotgun? It seems to me there is yet another argument against applying Sommers v. Tice to our case. A key element in the Sommers analysis is *certainty* that damage was caused by one of the defendants: "it is certain that between them they did all...". The analog for the defendants in our case are the various "ripper" programs that were posted in the second half of 1999. But it is far from certain that the movie files allegedly posted to the Internet were created using *any* of those ripper programs. There are at least three ways to produce a Divx file of a movie without using a ripper program: 1. You can digitize the analog output of a DVD player using a video capture board. 2. You can recorded the movie using a digital camcorder pointed at the screen while the movie is being shown in a theater. 3. You can obtain decrypted data from someone who has legitimate access to it, e.g. an employee of one of the DVD manufacturers. The recent posing of "X-Men" to the Internet proves that DVD rippers are not needed because the DVD for "X-Men" has not yet been released. Even if one accepts plaintiffs' claim that Divx movie files appeared shortly after the ripper programs were posted, and interpret that as suggesting a link, the evidence hardly rises to the standard in Sommers, which is certainty. Arnold Reinhold At 9:20 AM -0400 7/26/2000, Wendy Seltzer wrote: >After meeting with members of the EFF/Frankfurt Garbus defense team at the >conclusion of trial yesterday, I want to pass on a tremendous thank you to >everyone who has contributed to the forum. I think we've gotten some great >insights and analyses from list participants, both directly through the >amicus brief, trial declarations, and testimony, and indirectly, as many >ideas from threads here have become parts of briefs and arguments in court.  > >I'm waiting to hear more about where we can be most helpful in the next >steps. Both sides are to file post-trial briefs by August 8. They've been >asked to address issues of particular concern to Kaplan (1) the likely >efficacy/futility of an injunction; (2) Summers v. Tice on >allocation of the harm among multiple ripper utilities and burden of proof; >and (3) evidentiary issues on the extent to which Kaplan can conclude from >hearsay that decoded DVDs are available over the Internet, and will >probably include additional legal argument on points such as "authority of >the copyright owner" and the import of First Amendment protection for code.  > >In the meantime, analysis of the trial transcripts and development of >arguments continue to be very helpful. > >Thanks again! >--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 Wed Jul 26 14:38:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17159 for dvd-discuss-outgoing; Wed, 26 Jul 2000 14:38:42 -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 OAA17156 for ; Wed, 26 Jul 2000 14:38:40 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 26 Jul 2000 11:38:21 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] CSS patented Date: Wed, 26 Jul 2000 11:38:21 -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: Chris Moseng [mailto:moseng@mninter.net] > Sent: Wednesday, July 26, 2000 8:50 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] CSS patented > > > Jim Taylor wrote: > > It's apparently a common misperception that CSS is not patented. > > Parts of CSS are patented. See > > http://www.patents.ibm.com/details?pn=US06021199__, > > http://www.patents.ibm.com/details?pn=US05915018_, and > > related patents. > > Which begs the question, why isn't the patent holder suing for patent > infringement? Because it would certify anticompetitive tying. If they > proved in court that movies from the studios could only be played on > players that implemented a patented mechanism, and that that > patent was > actively being defended, they would open themselves to anti-trust > scrutiny. > > While I know nothing about actual patent law, I would argue the patent > is an unenforceable one, in practical terms. > > And I'll even put money on the notion that Judge Kaplan's firm went > through all of this with Time Warner. They're some of the many lawyers > who helped the studios devise this set of smoke and mirrors to thwart > the public from holding the studios accountable for the tying > arrangement. If they could show that Kaplan actually advised them on setting up this scheme, then he would have to be taken off the case. The recusal motion was merely because of his previous work for TW ... but since it could not be shown that the work he did pertained to this case he did not step down. Do you know something we don't? -- -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 Jul 26 14:39:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17228 for dvd-discuss-outgoing; Wed, 26 Jul 2000 14:39:51 -0400 Received: from dial170.roadrunner.com (dial170.cybermesa.com [209.12.75.170] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA17218 for ; Wed, 26 Jul 2000 14:39:47 -0400 Received: (from paul@localhost) by dial170.roadrunner.com (8.8.7/8.8.7) id MAA01711 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 12:38:48 -0600 Date: Wed, 26 Jul 2000 12:38:47 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] 17 USC 109(c) - First Sale allows Viewing sans Authorizatoin!!! Message-ID: <20000726123846.A1243@localhost> References: <20000726164153.1232.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000726164153.1232.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Wed, Jul 26, 2000 at 09:41:53AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 09:41:53AM -0700, Bryan Taylor wrote: > > --- Paul Fenimore wrote: > > > 1201(c): > > > > (c) Other Rights, Etc., Not Affected. - > > (1) Nothing in this section shall affect rights, remedies, > > limitations, or defenses to copyright infringement, > > including fair use, under this title. > > > > Section 109 is part of fair use, which runs from section 107 through > > section 121. > > I generally think of First Sale as defined in section 109 is a distinct > concept from fair use, which is just 107. Is this wrong? I don't claim to understand this completely, or to be an expert. I've also though of first sale as a foundational idea independent of fair use, but the wording in Title 17 is: Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord "Limitations on exclusive rights" sounds like fair use to me, although I image that the first sale doctrine arises from common-law principle of owning _things_, and what can be done with them. I've though of fair use as a thing that applies to uses of work, rather than a copy, so this looks muddled to me. I can't fully reconcile this with my pre-conceptions and what I've read in the last few months. Perhaps one of the lawyers has a more cogent explanation? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 14:42:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17353 for dvd-discuss-outgoing; Wed, 26 Jul 2000 14:42:55 -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 OAA17350 for ; Wed, 26 Jul 2000 14:42:53 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 26 Jul 2000 11:42:31 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D47@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] authorization Date: Wed, 26 Jul 2000 11:42:30 -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 Eldred [mailto:eldred@eldritchpress.org] > Sent: Tuesday, July 25, 2000 7:53 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] authorization > > > On Tue, Jul 25, 2000 at 03:53:04PM -0700, Richard Hartman wrote: > > ... > > All I was trying to get at was that Kaplan seemed to be > > dismissing the media saying that all the buyer owned > > was the "polycarbonate disc", not the work. My point > > is that some rights -do- attach to the ownership of that > > media, and the 109 excerpt shows this. > > Sounds like this point needs to be carefully placed > in the record. This case is not a licensing case, > is it, under UCITA? It's a copyright case and there > must be plenty of precedent for fair use after first > sale. Because if Kaplan denies that he must be > assuming that DMCA took away all rights of the first > sale, under law, and there is no question of fact > as to what the license is, or the fair use rights > (even though the law specifically states that the > consumer still enjoys fair use). > As someone else just posted, 1201(c) specifically disclaims any attempt to alter these rights "including fair use" ... and 109 is in the fair use section. -- -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 Jul 26 14:54:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17585 for dvd-discuss-outgoing; Wed, 26 Jul 2000 14:54:39 -0400 Received: from dial210.roadrunner.com (dial210.cybermesa.com [209.12.75.210] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA17582 for ; Wed, 26 Jul 2000 14:54:36 -0400 Received: (from paul@localhost) by dial210.roadrunner.com (8.8.7/8.8.7) id MAA01877 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 12:54:57 -0600 Date: Wed, 26 Jul 2000 12:54:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000726125456.B1243@localhost> References: <397F3B84.96B2A11D@easybase.com> <397F41DE.F207C3FB@easybase.com> <39805739.F930E2DA@easybase.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39805739.F930E2DA@easybase.com>; from moshev@easybase.com on Thu, Jul 27, 2000 at 06:37:30PM +0300 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 06:37:30PM +0300, Moshe Vainer wrote: > Replying to myself once again, and although the trial has concluded > (may be this is still in time before August 8) > there is another issue with executable source: > Computers will soon be able, (and are actually > beginning to be able now) to execute speach. With the advancement > of speach recognition technologies, one could make an interpreter that would > interprete voice & execute it. This point about voice-control is mentioned in the Junger decision. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:03:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17753 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:03:21 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA17750 for ; Wed, 26 Jul 2000 15:03:15 -0400 Received: from 209-122-247-168.s168.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.168]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13HWS0-0005VA-00 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 15:02:41 -0400 Date: Wed, 26 Jul 2000 15:02:22 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 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 On Wed, 26 Jul 2000, Consilgere@cs.com wrote: > Date: Wed, 26 Jul 2000 13:04:46 EDT > To: dvd-discuss@eon.law.harvard.edu > From: Consilgere@cs.com > Reply-To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Shotgun Analogy > > If the government already acknowldges its armament status, is precedent > really necessary? > This is getting silly. The crypto restrictions are part of the so-called Wassenaar agreement of 1998, restricting the unlicensed import and export of munitions. Thus the full title "Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies." See, in general, http://www.wassenaar.org Not every thing on the list is a munition. Some, including computers, and information security equipment, are so called "dual use" technologies. Others, such as " Tracked or wheeled self-propelled armoured fighting vehicles with high cross-country mobility and a high level of self-protection, weighing at least 16.5 metric tonnes unladen weight, with a high muzzle velocity direct fire main gun of at least 75 mm calibre." clearly fall into the "munitions" category. The second Amendment protects the right to bear arms, yes, but no court has recognized the right of a US citizen to own and operate an armed T72 tank. You may believe that there is legal merit to argments that no type of arm is restricted, but current doctrine places emphasis on the "well regulated" interpretation. (That may change, but it is likely that any change in 2nd amendment interpretation will postdate the MPAAv 2600 appeals process...) Finally, to bring this thread back to a semblence of reality, the major court cases in this area (Bernstein v DOJ and Junger v Daley) are first amendment cases, not second amendment cases. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:09:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17946 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:09:39 -0400 Received: from server.easybase.com (easybase.com [192.115.162.254]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id PAA17943 for ; Wed, 26 Jul 2000 15:09:38 -0400 Received: from easybase.com (unverified [192.115.162.238]) by server.easybase.com (EMWAC SMTPRS 0.83) with SMTP id ; Wed, 26 Jul 2000 22:07:47 +0300 Message-ID: <398088CB.9882831E@easybase.com> Date: Thu, 27 Jul 2000 22:08:59 +0300 From: Moshe Vainer X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15-4mdk i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) References: <397F3B84.96B2A11D@easybase.com> <397F41DE.F207C3FB@easybase.com> <39805739.F930E2DA@easybase.com> <20000726125456.B1243@localhost> Content-Type: text/plain; charset=iso-8859-1 Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from base64 to 8bit by eon.law.harvard.edu id PAA17944 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > On Thu, Jul 27, 2000 at 06:37:30PM +0300, Moshe Vainer wrote: > > Replying to myself once again, and although the trial has concluded > > (may be this is still in time before August 8) > > there is another issue with executable source: > > Computers will soon be able, (and are actually > > beginning to be able now) to execute speach. With the advancement > > of speach recognition technologies, one could make an interpreter that would > > interprete voice & execute it. > > This point about voice-control is mentioned in the Junger decision. > > Paul Fenimore Interesting, what was that decision about, with regard to voice controlled execution? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:10:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA17956 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:10:03 -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 PAA17953 for ; Wed, 26 Jul 2000 15:10:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 26 Jul 2000 12:09:38 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D48@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p. 3-5 Date: Wed, 26 Jul 2000 12:09:38 -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] ... > > 7 They believe in the right to take this work without > 8 any permission, but no one has the right to steal another > 9 person's copyright to steal their intellectual property and > 10 Congress may provide and has provided additional protection > 11 for intellectual property when new technology has > 12 substantially increased the risks of infringement. > ... > > 13 We note this is not the appropriate forum for the > 14 expression of defendant's beliefs about effective social, > 15 economic and Internet policy. You do, however, believe that this is the appropriate forum for the expression of -your- beliefs about the social attitudes of "the Internet" and effective social, economic and Internet policy in the light thereof? Can we file a slander suit on Mr. Gold for accusing us -- as Internet denizens -- of "believing in the right to take work without any permission"? I daresay that -some- people may believe this. But -some- people have -always- believed in their right to others' possessions and work, Internet or no. They are called "criminals", and that is why we have a justice system for. Mr. Gold, in his opening statement, has grossly slandered "the Interent" (hence all of it's users, i.e. us) as criminals. -- -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 Jul 26 15:19:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18261 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:19:19 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18258 for ; Wed, 26 Jul 2000 15:19:18 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6QJIin12693 for ; Wed, 26 Jul 2000 14:18:44 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id OAA00331 for ; Wed, 26 Jul 2000 14:18:42 -0500 (CDT) Date: Wed, 26 Jul 2000 14:18:42 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Abilene and Internet2 (Trial, P 1032, Day 6) 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 Having just finished Ole's testimony (way to go :-) I noticed that Mr Cooper made only one significant point on cross 6 Q. You mentioned in paragraph 4D that your experiment in the 7 laboratory using 100-megabit-per-second networking using your 8 view, the "absolute best case possible scenario"; correct? 9 A. That's correct. 10 Q. You're aware, are you not, that the new Abilene network 11 that has been developed for major universities is running at 12 2.4 gigabits-per-second speeds? 13 A. That speed is not what you can attain in between 14 individual computers, however. 15 Q. No, but it is the new state of the art used at 16 universities rather than 100-megabit-per-second network; 17 correct? 18 A. I don't think it's used at any university other than 19 Abilene and its partners, so. 20 Q. Do you have any idea who those partners are now? 21 A. I do not. 22 Q. Does 37 sound about right to you? 23 A. I do not have an idea. Now, like Ole, I didn't know that much about the Abilene project either. But that's what google is for. So, here are my findings, demonstrating the total irrlevance of Abilene to the issues in this trial. Abilene is one of the networks that make up Internet2 (along with vBNS+ and networks outside Internet2, lik ca*net 3). [1] Here's the mission of Internet2, as outlined in an early draft proposal [2]. Within and across many colleges and universities, a set of advanced network-based applications is emerging. These will greatly enrich teaching, learning, collaboration and research activities. For example: The broad use of distance learning will require selectable quality of service and efficient "one-to-many" data transport in support of multimedia and shared information processing. Our leading-edge research community needs high capacity and selectable quality of service to make effective use of national laboratories, computational facilities and large data repositories. Medical researchers need support for remote consultation and diagnoses over highly reliable and predictable communications services. Physical scientists, especially those who deal with massive astronomical or geophysical datasets, have similar needs. As transaction-level commercial data come into research focus, financial and economic analysts will need real-time access to masses of data. And the list goes on. A major impediment to the realization of these applications is lack of advanced communications services in the current commodity Internet -- there is, therefore, not yet a testbed in which to prove their effectiveness, much less to implement them on a wide scale. Internet2 is about high-bandwith, resarch applications. It's not about letting students download DivX files. As I have mentioned before, my school has an Internet2 connection, and we get 655Mbps to the outside world. The students see 12Mbps of that. The fact that certain tenured reasearchers in the physics dept get to use a 2.4Gbps network as a part of the Abilene project has *nothing* to do with the bandwidth available to students. If the defense team needs it, lots more infor is availabe at the Internet2 website [3]. [1] http://www.internet2.edu/html/advancednets.html [2] http://www.internet2.edu/html/97engineering.html# [3] http://www.internet2.edu/ sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:23:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18344 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:23:22 -0400 Received: from scaup.prod.itd.earthlink.net (scaup.prod.itd.earthlink.net [207.217.121.49]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18340 for ; Wed, 26 Jul 2000 15:23:16 -0400 Received: from jst.cyberpass.net (1Cust132.tnt1.lax1.da.uu.net [63.24.139.132]) by scaup.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id MAA20562 for ; Wed, 26 Jul 2000 12:22:16 -0700 (PDT) Message-Id: <4.3.2.7.2.20000726121809.00ab71e0@cyberpass.net> X-Sender: j.s.tyre@cyberpass.net X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 26 Jul 2000 12:24:02 -0700 To: From: "James S. Tyre" Subject: RE: [dvd-discuss] Transcript, day 1, p. 3-5 In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D48@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 12:09 PM 07/26/2000 -0700, Richard Hartman wrote: >Can we file a slander suit on Mr. Gold for accusing us -- >as Internet denizens -- of "believing in the right to take >work without any permission"? Absolutely, positively, unequivocally, "No!" First, there are real problems with so-called class defamation actions, where the alleged defamer is accused of defaming a large class, rather than one or a few. Second, more important, statements made in the course of judicial proceedings are absolutely privileged, irrespective or truth or any other issues. This is one of those times where "absolute" means exactly what one thinks it means. Please waste no more time on this thought. Having defended (probably) more than a hundred defamation actions, never lost one, I know some small amount about this subject. ;-) -------------------------------------------------------------------- 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 Wed Jul 26 15:25:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18458 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:25:16 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18421 for ; Wed, 26 Jul 2000 15:24:57 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA13458 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 15:27:46 -0400 Date: Wed, 26 Jul 2000 15:27:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] We've proved Reverse Engineering Message-ID: <20000726152741.B12807@eldritchpress.org> References: <20000725041717.28269.qmail@web509.mail.yahoo.com> <20000725012441.A11596@eldritchpress.org> <20000725105849.A4358@thud.reric.net> <20000725184632.A26865@inka.de> <20000726111450.A2656@thud.reric.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000726111450.A2656@thud.reric.net>; from eds@reric.net on Wed, Jul 26, 2000 at 11:14:50AM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 11:14:50AM -0500, Eric Seppanen wrote: > On Tue, Jul 25, 2000 at 06:46:32PM +0200, Sham Gardner wrote: > > On Tue, Jul 25, 2000 at 10:58:49AM -0500, Eric Seppanen wrote: > > > Can Matthew Pavlovich's work for the defense be read as LiVid being in > > > "active concert or or participation" with 2600? If so, look for them to > > > try and shut down LiVid in about a month... > > > > As far as I can tell LiViD's site is linuxvideo.org and hosted in Germany, > > out of reach of the DMCA as such. That obviously didn't stop them from going > > after Jon Johansen. > > OK, but what if they claim personal jurisdiction over Matthew, and either > try to prevent him from actively working on LiViD? Two ways that I can > think of: (1) saying by doing CVS commits he's trafficking in violation of > the injunction, or (2) claiming LiViD is "his" server and trying to shut > it down directly on that claim. > > It seems to me that leaving the current wording of the injunction alone is > just asking for trouble, and the best way of avoiding trouble for LiViD is > by fighting for more reasonable language. I think everyone here would > agree that LiViD is of far greater importance than DeCSS, and ignoring > effects to the LiViD project while defending DeCSS might not be a good > idea. I agree. It is becoming more apparent that MPAA's real nightmare is LiViD's providing an open source DVD player for GNU/Linux, BSD, etc. They hope to get this effect indirectly through 2600. I wonder if the word "import" in 1201 might be a problem that Kaplan thinks would exist even if the site were in Germany. We need to have some discussion on whether or not there is really "importing" via hyperlinks or otherwise. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:26:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18524 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:26:11 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18521 for ; Wed, 26 Jul 2000 15:26:10 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id OAA06510 for ; Wed, 26 Jul 2000 14:25:36 -0500 (CDT) Message-ID: <397F3AFA.E6115452@uic.edu> Date: Wed, 26 Jul 2000 14:24:43 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] dvd-discuss] Transcript, day 1, p. 3-5 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 > 7 They believe in the right to take this work without > 8 any permission, but no one has the right to steal another > 9 person's copyright to steal their intellectual property and Richard Hartman writes: > Mr. Gold, in his opening statement, has grossly slandered > "the Internet" (hence all of it's users, i.e. us) as criminals. The movie companies appear to be under the impression that the general public is just out to steal from them, rip them off, and is, basically, a pack of thieves who can't be trusted for a second. Two expressions come to mind ... o The movie industry doth protest too much. o He who smelt it, dealt it. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:28:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18633 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:28:47 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18630 for ; Wed, 26 Jul 2000 15:28:34 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA13474 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 15:31:29 -0400 Date: Wed, 26 Jul 2000 15:31:24 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Day 6 Trial Transcript Message-ID: <20000726153124.C12807@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from eddank@eff.org on Wed, Jul 26, 2000 at 01:05:08PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 01:05:08PM -0400, Eddan Katz wrote: > The transcript of the sixth and final day of court proceedings in MPAA v. > 2600 is now available at: > http://www.eff.org/pub/Intellectual_property/Video/MPAA_DVD_cases/20000725_ny_tr > ial_transcript.html > > -Eddan Katz > EFF Intern Eddan, you have done a splendid job and should be congratulated on your contribution toward free speech. Thanks, on behalf of those of us on this list who could not have worked without you. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:42:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA18952 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:42:45 -0400 Received: from midway.uchicago.edu (midway.uchicago.edu [128.135.12.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA18949 for ; Wed, 26 Jul 2000 15:42:44 -0400 Received: from harper.uchicago.edu (root@harper.uchicago.edu [128.135.12.7]) by midway.uchicago.edu (8.10.1/8.10.1) with ESMTP id e6QJgAn27870 for ; Wed, 26 Jul 2000 14:42:10 -0500 (CDT) Received: from localhost (sytobinh@localhost [127.0.0.1]) by harper.uchicago.edu (8.9.3/8.9.3) with ESMTP id OAA16665 for ; Wed, 26 Jul 2000 14:42:08 -0500 (CDT) Date: Wed, 26 Jul 2000 14:42:08 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Day 6 Trial Transcript In-Reply-To: <20000726153124.C12807@eldritchpress.org> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 26 Jul 2000, Eric Eldred wrote: > Eddan, you have done a splendid job and should be > congratulated on your contribution toward free > speech. Thanks, on behalf of those of us on this > list who could not have worked without you. > More generally, I would like to thank the EFF generally on behalf of everyone here. You have persevered for this case, and allowed OpenLaw to be a part of that, despite our dificulties. Without all of you, this would have been impossible. Thanks sam th sam@uchicago.edu http://www.abisource.com/~sam From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:46:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19325 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:46:06 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19319 for ; Wed, 26 Jul 2000 15:45:50 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA13497 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 15:48:43 -0400 Date: Wed, 26 Jul 2000 15:48:38 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Abilene and Internet2 (Trial, P 1032, Day 6) Message-ID: <20000726154837.D12807@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from sam@uchicago.edu on Wed, Jul 26, 2000 at 02:18:42PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 02:18:42PM -0500, sam th wrote: > Having just finished Ole's testimony (way to go :-) I noticed that Mr > Cooper made only one significant point on cross > > > 6 Q. You mentioned in paragraph 4D that your experiment in the > 7 laboratory using 100-megabit-per-second networking using your > 8 view, the "absolute best case possible scenario"; correct? > 9 A. That's correct. > 10 Q. You're aware, are you not, that the new Abilene network > 11 that has been developed for major universities is running at > 12 2.4 gigabits-per-second speeds? > 13 A. That speed is not what you can attain in between > 14 individual computers, however. > 15 Q. No, but it is the new state of the art used at > 16 universities rather than 100-megabit-per-second network; > 17 correct? > 18 A. I don't think it's used at any university other than > 19 Abilene and its partners, so. > 20 Q. Do you have any idea who those partners are now? > 21 A. I do not. > 22 Q. Does 37 sound about right to you? > 23 A. I do not have an idea. > > > Now, like Ole, I didn't know that much about the Abilene project either. > But that's what google is for. So, here are my findings, demonstrating > the total irrlevance of Abilene to the issues in this trial. > > Abilene is one of the networks that make up Internet2 (along with vBNS+ > and networks outside Internet2, lik ca*net 3). [1] Here's the mission > of Internet2, as outlined in an early draft proposal [2]. > ... > Internet2 is about high-bandwith, resarch applications. It's not about > letting students download DivX files. As I have mentioned before, my > school has an Internet2 connection, and we get 655Mbps to the outside > world. The students see 12Mbps of that. The fact that certain tenured > reasearchers in the physics dept get to use a 2.4Gbps network as a part of > the Abilene project has *nothing* to do with the bandwidth available to > students. > > If the defense team needs it, lots more infor is availabe at the Internet2 > website [3]. > > [1] http://www.internet2.edu/html/advancednets.html > [2] http://www.internet2.edu/html/97engineering.html# > [3] http://www.internet2.edu/ actually, all this is very good for the defense. As several professors have testified, they need to use video in their educational work, including distance learning. So, insofar as Internet 2 is all about professors teaching over the Internet and carrying on other protected activities, and insofar as Internet 2 is restricted to those activities, and insofar as DVD needs to be decrypted in order to carry on those protected activities over this protected network, then transfer of DVD video over this network is protected, and if DeCSS is necessary and has a primary use to be able to carry on this protected activity, then it too is protected. Plaintiffs just boxed themselves in by this argument. They forgot that DMCA requires "commerical or personal financial gain" even though they don't cite it in their brief. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:47:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19423 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:47:47 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19419 for ; Wed, 26 Jul 2000 15:47:35 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA13506 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 15:50:25 -0400 Date: Wed, 26 Jul 2000 15:50:20 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 Message-ID: <20000726155020.E12807@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D48@mail2.onetouch.com> <4.3.2.7.2.20000726121809.00ab71e0@cyberpass.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <4.3.2.7.2.20000726121809.00ab71e0@cyberpass.net>; from j.s.tyre@cyberpass.net on Wed, Jul 26, 2000 at 12:24:02PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 12:24:02PM -0700, James S. Tyre wrote: > At 12:09 PM 07/26/2000 -0700, Richard Hartman wrote: > > > >Can we file a slander suit on Mr. Gold for accusing us -- > >as Internet denizens -- of "believing in the right to take > >work without any permission"? > > Absolutely, positively, unequivocally, "No!" How about, then, we accuse him of hijacking the Internet we created, without our permission, and trying to kick us off it? (I can't do that 'cause I'm not in court.) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:52:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19540 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:52:05 -0400 Received: from dial126.roadrunner.com (dial126.cybermesa.com [209.12.75.126] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19536 for ; Wed, 26 Jul 2000 15:51:59 -0400 Received: (from paul@localhost) by dial126.roadrunner.com (8.8.7/8.8.7) id NAA02038 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 13:52:21 -0600 Date: Wed, 26 Jul 2000 13:52:20 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 6, p.990, 993: typos? Message-ID: <20000726135219.A1892@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 Day 6, p. 990, DiBona: 7 A. For graphical work stations. So, one of our clusters, 8 already a graphical work station, is used by scientists and 9 engineers to simulate or visualize data sites so that people 10 can understand them, what kind of data they're working with. On line 9, sites ==> sets? Day 6, p. 993, DiBona: 13 THE WITNESS: Netcraft is an another market research 14 site. What they do is they, using a program, sort of pull 15 different machines on the Internet to see what they are 16 running, and they put together a report based on that, and 17 from this point they can tell if they're running Windows or 18 Linux or whatever. On line 14, pull ==> poll? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 15:56:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19587 for dvd-discuss-outgoing; Wed, 26 Jul 2000 15:56:25 -0400 Received: from dial126.roadrunner.com (dial126.cybermesa.com [209.12.75.126] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19584 for ; Wed, 26 Jul 2000 15:56:18 -0400 Received: (from paul@localhost) by dial126.roadrunner.com (8.8.7/8.8.7) id NAA02047 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 13:56:43 -0600 Date: Wed, 26 Jul 2000 13:56:42 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause Message-ID: <20000726135642.B1892@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 Day 6, p. 998: 5 THE COURT: You know, the patent laws have an 6 anti-competitive effect. If a drug company finds the cure for 7 cancer and patents it, it will be the only drug company that 8 can sell it. They will charge whatever they want, and it will 9 be highly anti-competitive, and it will be perfectly legal 10 because the Patent Code so permits. So, I just don't get the 11 argument. Patents give monopolies on devices or processes to _inventors_. They do not give a monopoly to _authors_. Nor does copyright give _authors_ a monopoly on _devices or processes_. Monopoly, or monopoly-like effects on the traditional domain of patents by the domain of copyright would seem fair game for consideration by a court. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:04:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19689 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:04:24 -0400 Received: from web109.yahoomail.com (web109.yahoomail.com [205.180.60.76]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id QAA19686 for ; Wed, 26 Jul 2000 16:04:21 -0400 Received: (qmail 8129 invoked by uid 60001); 26 Jul 2000 20:03:46 -0000 Message-ID: <20000726200346.8128.qmail@web109.yahoomail.com> Received: from [128.122.253.144] by web109.yahoomail.com; Wed, 26 Jul 2000 13:03:46 PDT Date: Wed, 26 Jul 2000 13:03:46 -0700 (PDT) From: "Tuyet A. Ngoc Tran" Subject: Re: [dvd-discuss] Abilene and Internet2 (Trial, P 1032, Day 6) 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 This is quite true since high-speed connectivity provided by Internet2 and CA*net 3 alone would accomplish very little. Virtually all new Internet2 services require the creation of application software to actually execute the intended function. My professor collaborate with MsGill to demonstrate a DVD-quality surround sound audio signal streamed from a live performance in Montreal. From the Montreal site, the six-channel mix of 48KHs 16-bit surround sound was encoded using an off-the-shelf Dolby DP569 encoder unit at 640 kbps. The Dolby Digital stream was encapsulated within an industry standard AES/EBU stream at 1.5 Mbps. This stream was then input to a Silicon GraphicsIndy with a standard S/PDIF digital audio connector. The Indy, running software developed by McGill encapsulated the AES/EBU stream within the standard Internet UDP packets. These packets then traversed the CA*net 3 and Internet 2 networks to a similar SGI Indy at NYU's Cantor Center. McGill's software running on the NYU Indy then extracted the AES/EBU stream from the UDP packets and sent it out the S/PDIF digital audio connector for final decoding using a Dolby DP562 unit. Once the six-audio channels were reconstructed, they fed the the Cantor Center in NYC theater-quality sound and image system. The NYU-McGill demonstration used a pair of independent Intel based Windows NT systems, video transmitted in a distinct 1.4 Mbps streamin using Cisco's IP/TV system with MPEG-1 compression. There was a 23-second buffer against network congestion. The demo also took place on Sunday evening. It would be quite unrealistic to think that average students from any dorm facilities to set up or mimic such an arrangement - as alluded by Mr. Cooper. --- sam th wrote: > So, here are my > findings, demonstrating > the total irrlevance of Abilene to the issues in > this trial. > > Abilene is one of the networks that make up > Internet2 (along with vBNS+ > and networks outside Internet2, lik ca*net 3). [1] > Here's the mission > of Internet2, as outlined in an early draft proposal > [2]. > > > Within and across many colleges and universities, a > set of advanced > network-based applications is > emerging. These will greatly enrich teaching, > learning, collaboration > and research activities. For example: > > The broad use of distance learning will require > selectable quality of > service and efficient "one-to-many" > data transport in support of multimedia and > shared information > processing. > > Our leading-edge research community needs high > capacity and selectable > quality of service to make > effective use of national laboratories, > computational facilities and > large data repositories. > And the list goes on. A major impediment to the > realization of these > applications is lack of advanced > communications services in the current commodity > Internet -- there is, > therefore, not yet a testbed in which > to prove their effectiveness, much less to > implement them on a wide > scale. > > > Internet2 is about high-bandwith, resarch > applications. It's not about > letting students download DivX files. As I have > mentioned before, my > school has an Internet2 connection, and we get > 655Mbps to the outside > world. The students see 12Mbps of that. The fact > that certain tenured > reasearchers in the physics dept get to use a > 2.4Gbps network as a part of > the Abilene project has *nothing* to do with the > bandwidth available to > students. > > If the defense team needs it, lots more infor is > availabe at the Internet2 > website [3]. > > [1] http://www.internet2.edu/html/advancednets.html > [2] > http://www.internet2.edu/html/97engineering.html# > [3] http://www.internet2.edu/ > > sam th > sam@uchicago.edu > http://www.abisource.com/~sam > > > __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:11:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19847 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:11:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA19844 for ; Wed, 26 Jul 2000 16:11:14 -0400 Received: by aero.org id <17116-5>; Wed, 26 Jul 2000 13:10:17 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdVRCa07380; Wed Jul 26 13:10:10 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 12:32:16 -0700 Subject: Re: [dvd-discuss] CSS patented To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 12:32:16 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 13:10:15 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu the first one's pretty stupid....can't encrypt everything...encrypt a third of it....I've been up on my soapbox on this one already.. "Jim Taylor" @eon.law.harvard.edu on 07/26/2000 03:29:32 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: cc: Subject: [dvd-discuss] CSS patented Richard Hartman, on Monday, July 24, 2000 9:32 AM, wrote > >The biggest flaw, IMO, is that if they had patented >CSS then their case really would be correct. But by >going the trade secret route they opened themselves >up to the possibility of reverse engineering. It's apparently a common misperception that CSS is not patented. Parts of CSS are patented. See http://www.patents.ibm.com/details?pn=US06021199__, http://www.patents.ibm.com/details?pn=US05915018_, and related patents. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:12:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA19878 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:12:13 -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 QAA19872 for ; Wed, 26 Jul 2000 16:12:11 -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:2.21) with ESMTP id QAA04738 for ; Wed, 26 Jul 2000 16:11:37 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA19965; Wed, 26 Jul 2000 16:11:36 -0400 (EDT) Date: Wed, 26 Jul 2000 16:11:36 -0400 (EDT) Message-Id: <200007262011.QAA19965@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause In-Reply-To: <20000726135642.B1892@localhost> References: <20000726135642.B1892@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > Day 6, p. 998: > > 5 THE COURT: You know, the patent laws have an > 6 anti-competitive effect. If a drug company finds the cure for > 7 cancer and patents it, it will be the only drug company that > 8 can sell it. They will charge whatever they want, and it will > 9 be highly anti-competitive, and it will be perfectly legal > 10 because the Patent Code so permits. So, I just don't get the > 11 argument. > > Patents give monopolies on devices or processes to _inventors_. They > do not give a monopoly to _authors_. Nor does copyright give _authors_ > a monopoly on _devices or processes_. > > Monopoly, or monopoly-like effects on the traditional domain of patents > by the domain of copyright would seem fair game for consideration by a > court. Agreed. However, Kaplan doesn't seem to see it that way; remember that he has just about announced that he will declare the DMCA to have superseded anti-trust laws to the extent that the two are in conflict. However, antitrust (as I understand it) deals with the regulation of monopolies that arise in the marketplace, while the plaintiffs are claiming, in effect, that Congress has *granted* them a monopoly on their "access control" process with the DMCA. And this is a significant difference, because there are limits on the kinds of monopolies which Congress can *create* --- limits which are spelled out in the Constitution (Article I, section 8), and *can't* be superseded by the DMCA. This point is already implicit in Paul's remarks --- one of the limits is, in fact, that Congress can't grant a monopoly over an invention (e.g., a process) to authors, but only to inventors. Another limit is that Congressional monopolies must endure "for limited times" only --- there is no limit, not even pro forma, on the supposed "access control" monpoly. (Another chink in their armor here which some folks have mentioned would be to propose an interpretation of the DMCA which eliminates the conflict --- FWIW, I've got mine, and Paul has his, but I'm not sure I've seen one in the transcripts yet, and I don't think we have access to the relevant defense briefs). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:17:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20199 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:17:31 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA20196 for ; Wed, 26 Jul 2000 16:17:29 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id NAA17885 for ; Wed, 26 Jul 2000 13:16:25 -0700 Date: Wed, 26 Jul 2000 13:16:24 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Financial gain. In-Reply-To: <4.3.2.7.2.20000726121809.00ab71e0@cyberpass.net> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I have a few quick questions: Does the DMCA require personal or financial gain from infringement in order to be enforced? Or does it require personal or financial gain from trafficking? Second, I was reading Ms. Reider's testimony and I was not at all pleased by something I heard. On direct examination, she was asked if she had seen internet sites offering motion pictures for barter or sale. She said she had. Now, I've used many a BBS with upload/download ratios and I understand Hotline implements this. Does this qualify as barter? Isn't it more likely that she saw web sites or ftp servers that offered the movies gratis? The Ps have already removed "harm" from their case, so can they really go after anyone on the basis of personal or financial gain? I think there are two or three briefs that need submitting. We need something clear that explains what happens when a DVD player and a DVD are sold second-hand and how that's identical to a first-sale doctrine rather than an access controlled one. I think we also really need to nail down a legal brief that says that the DMCA protects technological measures and not licensing measures like thos involved in the DVDCCA/MPAA arrangement. Those are my few bits. Copy them bit for bit, if you like. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:28:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20318 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:28:14 -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 QAA20314 for ; Wed, 26 Jul 2000 16:28:12 -0400 Message-ID: <20000726202707.7359.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Wed, 26 Jul 2000 13:27:07 PDT Date: Wed, 26 Jul 2000 13:27:07 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] dvd-discuss] Transcript, day 1, p. 3-5 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 --- John Schulien wrote: > The movie companies appear to be under the impression > that the general public is just out to steal from them, rip > them off, and is, basically, a pack of thieves who can't > be trusted for a second. > > Two expressions come to mind ... > > o The movie industry doth protest too much. > o He who smelt it, dealt it. Here's an article about how the music industry can't recruit top IT talent in multimedia. http://www.latimes.com/business/reports/musicweb/recruit000724.htm If there is one thing that Microsoft has understood very well it's that developer "mindshare" is critical for producing the sort of cutting edge applications that will sustain competitiveness. Anybody out there wanna hack code for Time Warner? I didn't think so. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:36:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA20668 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:36:03 -0400 Received: from smtp02.mrf.mail.rcn.net (smtp02.mrf.mail.rcn.net [207.172.4.61]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA20665 for ; Wed, 26 Jul 2000 16:36:02 -0400 Received: from 209-122-247-168.s168.tnt8.lnhva.md.dialup.rcn.com ([209.122.247.168]) by smtp02.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13HXtn-00002i-00 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 16:35:28 -0400 Date: Wed, 26 Jul 2000 16:35:09 EDT From: Jeremy Erwin To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] ironic typo ? (Day 6, depositions) X-Mailer: Spruce 0.6.5 for X11 w/smtpio 0.7.9 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 page 1050 18 Q. Now, are you aware of Steven King's recent decision to put 19 a Gnutella on the Internet on -- strike that. Are you aware 20 of Steven King and Simon and Shuster's experiment earlier this 21 year in delivering a Steven King Gnutella over the Internet? I think they meant "novella"... Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 16:43:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21459 for dvd-discuss-outgoing; Wed, 26 Jul 2000 16:43:34 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21456 for ; Wed, 26 Jul 2000 16:43:29 -0400 Received: by aero.org id <17105-2>; Wed, 26 Jul 2000 13:42:31 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdHWCa07380; Wed Jul 26 13:41:28 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 12:48:59 -0700 Subject: Re: [dvd-discuss] CSS patented To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 12:48:59 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 13:41:36 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes that would work...but then they shouldn't be whining that the encryption algorithms was cracked in court. ...actually I just looked at the patent http://www.patents.ibm.com/cgi-bin/viewpat.cmd/US05915018__ A cryptographic system and method for secure distribution and management of cryptographic keys for use in a DVD copy protection scheme is disclosed. A DVD disc having compressed, encrypted content written on a first portion of the disc, and the content encryption key, itself encrypted with a second key and written out of band on a second portion of the disc is used to provide content, key, and control information to a DVD drive according to the present invention. The DVD drive is coupled to a decompressor and a video controller. The video controller and DVD drive engage in a handshaking protocol in which all of the communication between them is encrypted. After verifying that the video controller is registered and not known to be compromised, the DVD drive passes the content key and control information to the video controller, and the compressed, encrypted content to the decompressor. The content decompressed by the decompressor is communicated to the video controller where it is decrypted and converted to video signals. The control information instructs the video controller as to whether an optional analog protection scheme should be applied to the video signals prior to delivering the video signals to the display. They patented the Key management...putting the keys on the DVD.....Well here's another example of the USPO patenting STUPIDITY. "Robert S. Thau" @eon.law.harvard.edu on 07/26/2000 08:42:35 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] CSS patented Michael A. Rolenz writes: > Interesting.....the question of theft of trade secrets starts to become > moot...also the honesty of the plaintiffs in bringing this suit. They can't > claim both or hide one and claim the other. But why can't they consistently claim different protections for different parts of the mechanism (a patent on their "cipher" and trade secret protection for the player keys)? rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 17:10:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23290 for dvd-discuss-outgoing; Wed, 26 Jul 2000 17:10:46 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23287 for ; Wed, 26 Jul 2000 17:10:30 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA13586 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 17:13:26 -0400 Date: Wed, 26 Jul 2000 17:13:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] ironic typo ? (Day 6, depositions) Message-ID: <20000726171321.F12807@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from jerwin@osf1.gmu.edu on Wed, Jul 26, 2000 at 04:35:09PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 04:35:09PM -0400, Jeremy Erwin wrote: > > > page 1050 > > 18 Q. Now, are you aware of Steven King's recent decision to put > 19 a Gnutella on the Internet on -- strike that. Are you aware > 20 of Steven King and Simon and Shuster's experiment earlier this > 21 year in delivering a Steven King Gnutella over the Internet? > > I think they meant "novella"... Actually, King has decided to forego encryption on his latest online work, "The Plant." It isn't Free Software nor Open Source, but it is open and available for a buck a chapter. Interesting experiment. See http://www.stephenking.com/ He calls it the big "publishers' worst nightmare," and he is expert at creating nightmares for people. Looks like RIAA and MPAA and APA are having nightmares about these events and so the confusion with "Gnutella" is more than ironic, it's Freudian and desperate. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 17:15:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23702 for dvd-discuss-outgoing; Wed, 26 Jul 2000 17:15:05 -0400 Received: from smtp01.mrf.mail.rcn.net (smtp01.mrf.mail.rcn.net [207.172.4.60]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA23699 for ; Wed, 26 Jul 2000 17:15:04 -0400 Received: from 216-164-134-141.s395.tnt3.lnhva.md.dialup.rcn.com ([216.164.134.141]) by smtp01.mrf.mail.rcn.net with esmtp (Exim 3.15 #2) id 13HYVZ-0002ah-00 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 17:14:30 -0400 Mime-Version: 1.0 X-Sender: jerwin@osf1.gmu.edu Message-Id: In-Reply-To: References: Date: Wed, 26 Jul 2000 17:14:09 -0400 To: dvd-discuss@eon.law.harvard.edu From: Jeremy Erwin Subject: Re: [dvd-discuss] CSS patented 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 >Yes that would work...but then they shouldn't be whining that the >encryption algorithms was cracked in court. ...actually I just looked at >the patent > >http://www.patents.ibm.com/cgi-bin/viewpat.cmd/US05915018__ > Actually, this patent refers to an "improvement" over the existing regime: The new system provides cancellation of payer keys (I assume by modem.). The patent is owned by Intel, BTW. The patent is written in a fairly imprecise language (IMHO) and I don't really understand all the details, though. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 17:16:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA23827 for dvd-discuss-outgoing; Wed, 26 Jul 2000 17:16:47 -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 RAA23824 for ; Wed, 26 Jul 2000 17:16:46 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 26 Jul 2000 14:16:27 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D49@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p. 25: authorized players, c ircumvention Date: Wed, 26 Jul 2000 14:16:26 -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] ... > > Shamos is also flopping between "complaint disks" and > "unlicensed disks". > There's a difference. > > 15 Q. Do you know what DeCSS is? > > 16 A. Yes. > > 17 Q. What does it do? > > 18 A. DeCSS is a computer program that circumvents the > 19 protections on the CSS DVD. > > No analysis of authority et al. has occurred. > > Lines 18 and 19 are a "conjecture of law", not a statement of fact. > And Garbus didn't object there? Conclusion on the part of the witness or something? After all, determining whether DeCSS circumvents is the whole reason that they are there, no? -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 17:24:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA24070 for dvd-discuss-outgoing; Wed, 26 Jul 2000 17:24:12 -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 RAA24067 for ; Wed, 26 Jul 2000 17:24:10 -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 RAA11392; Wed, 26 Jul 2000 17:23:22 -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 RAA01198; Wed, 26 Jul 2000 17:02:04 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200007261416.KAA03028@samsara.law.cwru.edu> References: <200007261416.KAA03028@samsara.law.cwru.edu> Date: Wed, 26 Jul 2000 17:01:20 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn 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 10:16 AM -0400 7/26/2000, Peter D. Junger wrote: >... >I have not seen the judges remarks. I would like to point out, however, >that if O'Brien is applicable, then the problem is changed to intermediate >scrutiny and the burden of upholding the regulation, which is on the >plaintiffs, is not as great as it is in a pure speech case. But the >burden is still there, which stongly suggests that 1201(a)(2) should be >construed, if possible, so as to avoid the issue. One possible reading >would be that the section applies to ``black boxes'' not to software. > >I do not, however, see how O'Brien can be applied to software. In >O'Brien you had the physical burning of the draft card, an act that >would normally not be seen as speech of any kind, but which was used >to express a point of view. In the case of publishing software, however, >all there is the expression of information, the publication of the work, >and there is no tangible act like burning a floppy disk that contains >a copy of the software. > >The trouble is that there are lots of quotes from lower court cases >relying on O'Brien that sound very bad when taken out of context---the >context, more often than not being some sort of land use regulation. I >think that they can all be explained away as ``time, place, and manner'' >cases. This case is being brought under DMCA. Once you conclude that computer code is speech, then the only way plaintiffs can prevail is if DMCA imposes some new, constitutionally permissible, restriction on free speech. But Congress expressly disavowed any such intention. DCMA states in 1201d(4): "Nothing in this section shall enlarge or diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products." So there is no need to ask about standards of First Amendment scrutiny because Congress steered clear of freedom of speech issues within the law itself. Am I missing something? Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:07:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA25286 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:07:33 -0400 Received: from dial73.roadrunner.com (dial73.cybermesa.com [209.12.75.73] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA25283 for ; Wed, 26 Jul 2000 18:07:30 -0400 Received: (from paul@localhost) by dial73.roadrunner.com (8.8.7/8.8.7) id QAA02272 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 16:07:59 -0600 Date: Wed, 26 Jul 2000 16:07:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 6, p.1079: "Fire!" in a theater Message-ID: <20000726160758.C1892@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 Day 6, p. 1079: 16 There is no doubt that yelling "fire" in crowded 17 theatre is something that is problematic and probably impedes 18 expression by certain twisted individuals. I'm not drawing a 19 one-to-one analogy. You know how dangerous one-to-one 20 relationships are this morning, but you see the point. The point I see is that some buildings are so poorly designed that the time to empty the building of people is far longer than the time for the building to turn into a raging inferno. The person who yells "fire!" when there is none is responsible for those killed and injured in a stampede because they have exploited people's *well-founded* fear of hideously bad design re: fire-resistance and fire-suppression. There is nothing solely or even primarily attributable to the speech "fire!" that results in a stampede. Shouldn't the engineers be jointly liable for their grossly faulty design? Multiple shotguns? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:13:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA25407 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:13:02 -0400 Received: from dial146.roadrunner.com (dial146.cybermesa.com [209.12.75.146] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA25404 for ; Wed, 26 Jul 2000 18:13:00 -0400 Received: (from paul@localhost) by dial146.roadrunner.com (8.8.7/8.8.7) id QAA02448 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 16:13:30 -0600 Date: Wed, 26 Jul 2000 16:13:28 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause Message-ID: <20000726161328.A2314@localhost> References: <20000726135642.B1892@localhost> <200007262011.QAA19965@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: <200007262011.QAA19965@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Wed, Jul 26, 2000 at 04:11:36PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for expanding on these important points and filling in the holes. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:26:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA26044 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:26:33 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA26041 for ; Wed, 26 Jul 2000 18:26:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA13669; Wed, 26 Jul 2000 18:28:34 -0400 Date: Wed, 26 Jul 2000 18:28:29 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000726182828.A13660@eldritchpress.org> References: <200007261416.KAA03028@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Wed, Jul 26, 2000 at 05:01:20PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 05:01:20PM -0400, Arnold G. Reinhold wrote: >... > This case is being brought under DMCA. Once you conclude that > computer code is speech, then the only way plaintiffs can prevail is > if DMCA imposes some new, constitutionally permissible, restriction > on free speech. But Congress expressly disavowed any such intention. > DCMA states in 1201d(4): "Nothing in this section shall enlarge or > diminish any rights of free speech or the press for activities using > consumer electronics, telecommunications, or computing products." So > there is no need to ask about standards of First Amendment scrutiny > because Congress steered clear of freedom of speech issues within the > law itself. > > Am I missing something? No, but maybe the judge is. Would he take this paragraph to mean that Congress passed the DMCA with this statement knowing that there might be an obvious conflict between the DMCA and free speech, but that this paragraph could rule it out (by interpretation, a priori definition)? I don't see how that could be constitutional, to take that interpretation Congress could pass any law and claim that it had no conflict with the Constitution. The only interpretation that makes sense is that Congress meant that if any conflict with the First Amendment was later found (by determining the FACTS, not a priori law) then the provisions in the DMCA (1201) would be null and void. The question the judge will have to determine is if he can broaden his declaratory judgment wide enough to suppress any "means of circumventing access control" without at the same time suppressing free speech. His responses indicate he is having difficulty here. Now, doesn't a declaratory judgment require some First Amendment scrutiny? (Maybe the situation might be different after a full trial.) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:26:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA26053 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:26:50 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA26050 for ; Wed, 26 Jul 2000 18:26:48 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id RAA04489 for ; Wed, 26 Jul 2000 17:26:14 -0500 (CDT) Message-ID: <397F6553.1E0B30AA@uic.edu> Date: Wed, 26 Jul 2000 17:25:23 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 6, p.1079: "Fire!" in a theater 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 Day 6, p. 1079: 16 There is no doubt that yelling "fire" in crowded 17 theatre is something that is problematic and probably impedes 18 expression by certain twisted individuals. I'm not drawing a 19 one-to-one analogy. You know how dangerous one-to-one 20 relationships are this morning, but you see the point. Misuse of this analogy drives me up the wall. It was a very appropriate analogy back in the days when theatre fires regularly killed hundreds of people at a time ... but these days theatres in general are so safe that the analogy is meaningless and often misconstrued. I hear people say things like, "You are not allowed to use speech that annoys people, like yelling "fire" in a crowded theatre, which interrupts other people are trying to watch the movie ..." A better analogy would be: You see someone peering nervously into an open elevator shaft. You sneak up behind her and scream "BOO!", causing her to jump to her death. You claim "freedom of speech". This doctrine simply says that you don't have the right to use speech in such a way as to cause injury or death due to involuntary panic, nothing more. There is absolutely nothing about DeCSS that could cause involuntary panic leading to death or physical injury, and I am a bit disturbed that Kaplan is tossing this analogy around as if it were to apply ... It's sloppy thinking. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:38:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA26750 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:38:22 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA26747 for ; Wed, 26 Jul 2000 18:38:05 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA13678 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:41:03 -0400 Date: Wed, 26 Jul 2000 18:40:58 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Stephen King Message-ID: <20000726184057.B13660@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu 1050 18 Q. Now, are you aware of Steven King's recent decision to put 19 a Gnutella on the Internet on -- strike that. Are you aware 20 of Steven King and Simon and Shuster's experiment earlier this 21 year in delivering a Steven King Gnutella over the Internet? 22 MR. GARBUS: Objection. 23 THE COURT: Where is this going, Mr. Sims? 24 MR. SIMS: I'm asking him since he opined on what he 25 sees as a reason to or not to copy, whether he is aware of 1051 1 Mr. King's objection on television that he was amazed that 2 lots of hackers spent 48 hours trying to hack into a system in 3 which his novel was available for $2.50. 4 THE COURT: Sustained. 5 MR. GARBUS: Sorry Mr. Sims wasn't under oath for 6 that. 7 THE COURT: We can do without those comments. 8 MR. GARBUS: I'm sorry. I apologize. There has been some discussion of the DMCA affecting ebooks, on the bookpeople mailing list, so I append one note. I take the liberty of pointing out that Mr Elbourne is blind and so was unable to read Mr King's book "Riding the Bullet" unless someone decrypted it for him. (Mr King himself could not read it either because he has a Macintosh, and the book was encrypted so it could not use that computer.) The novel was actually given away at several sites, so there was no infringement in copying it and no "commercial or financial gain" involved in "hacking into a system." From: "Don A. Elbourne Jr." To: "Bookpeople" Subject: AFB on E-books, my response Date: Sat, 10 Jun 2000 07:46:48 -0500 I just read the paper "Surpassing Gutenberg: A Historic Opportunity in Access to Published Information for Blind Readers" (http://www.afb.org/ebook.html) and the authors sound very optimistic. I too am excited about the possibilities, but as one who has followed the developments, I must say that I can not share their optimism. I am concerned that visually impaired readers will be left out of the first generation of electronic book publishing due to an over infuses on DRM (Digital Rights Management). Take for example the recent release of Stephen King's "Riding the Bullet." The novella was only published and made available electronically. Over 400,000 copies were downloaded and the news media deemed the experiment a great success. However, the book was distributed in the proprietary Glassbook format that is totally inaccessible to blind readers. Screen readers can not access the Glassbook at all. The text can not be copied or exported from a Glassbook document. The DRM feature will not even allow you to print the document so that it could be scanned to perform OCR. Therefore this first foray into electronic publishing made the material totally inaccessible to visually impaired readers. I'm not a Stephen King fan, but even if I was, I would be unable to buy a print copy and OCR it like I do most of my other reading material. This book was published only in this locked up e-book format. This is a step backward, not a step forward, for blind readers. I hope this is not a foretaste of things to come. On the bright side, I did scrounge through the back alleys of the internet and found a hacked copy of "Riding the Bullet" in plain text format. I spend one afternoon reading it, sort of just out of spite. (grin) Don A. Elbourne Jr. http://elbourne.simplenet.com >From http://www.stephenking.com/download.html about his new online book, "The Plant": "My friends, we have a chance to become Big Publishing's worst nightmare. Not only are we going glueless, look Ma, no e-Book! No tiresome encryption! Want to print it and show it to a friend? Go ahead! There's only one catch: all this is on the honor system. Has to be. I'm counting on two things. The first is plain old honesty. "Take what you want and pay for it," as the old saying goes. The second is that you'll like the story enough to want to read more. If you do want more, you have to pay. Remember: Pay and the story rolls. Steal and the story folds. No stealing from the blind newsboy!" Exactly, let blind readers buy it and read it too! Mr Sims, are you listening? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 18:47:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA27174 for dvd-discuss-outgoing; Wed, 26 Jul 2000 18:47:07 -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 SAA27171 for ; Wed, 26 Jul 2000 18:47:06 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Wed, 26 Jul 2000 15:46:48 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D4D@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: RE: [dvd-discuss] Source code versus Object Code (executable) Date: Wed, 26 Jul 2000 15:46:47 -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 Eldred [mailto:eldred@eldritchpress.org] > Sent: Wednesday, July 26, 2000 3:28 PM > To: dvd-discuss@eon.law.harvard.edu > Cc: junger@samsara.law.cwru.edu; Gino J. Scarselli; Lee Tien; > Cindy Cohn > Subject: Re: [dvd-discuss] Source code versus Object Code (executable) > > > On Wed, Jul 26, 2000 at 05:01:20PM -0400, Arnold G. Reinhold wrote: > >... > > This case is being brought under DMCA. Once you conclude that > > computer code is speech, then the only way plaintiffs can > prevail is > > if DMCA imposes some new, constitutionally permissible, restriction > > on free speech. But Congress expressly disavowed any such > intention. > > DCMA states in 1201d(4): "Nothing in this section shall enlarge or > > diminish any rights of free speech or the press for > activities using > > consumer electronics, telecommunications, or computing > products." So > > there is no need to ask about standards of First Amendment scrutiny > > because Congress steered clear of freedom of speech issues > within the > > law itself. > > > > Am I missing something? > > No, but maybe the judge is. Would he take this paragraph to > mean that Congress passed the DMCA with this statement > knowing that there might be an obvious conflict between > the DMCA and free speech, but that this paragraph could rule it > out (by interpretation, a priori definition)? > > I don't see how that could be constitutional, to take that > interpretation Congress could pass any law and claim that > it had no conflict with the Constitution. > > The only interpretation that makes sense is that Congress > meant that if any conflict with the First Amendment was > later found (by determining the FACTS, not a priori law) > then the provisions in the DMCA (1201) would be null and void. > > The question the judge will have to determine is if he can > broaden his declaratory judgment wide enough to suppress > any "means of circumventing access control" without at the > same time suppressing free speech. His responses indicate > he is having difficulty here. > > Now, doesn't a declaratory judgment require some First > Amendment scrutiny? (Maybe the situation might be different > after a full trial.) > There may not be a conflict. Does the DMCA specify anywhere just what may or may not be considered a TPM? If specifically recognizes software in the role of a TPM, then there may be a conflict if software is recognized as speech. However, if this specific recognition is not part of the DMCA then in order to avoid conflict it must be interpreted such that TPMs may only be hardware. That is to say, if you have -circuitry- that scrambles bits, it would be a TPM but -software- that scrambles bits would not qualify. -- -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 Jul 26 19:04:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA27932 for dvd-discuss-outgoing; Wed, 26 Jul 2000 19:04:14 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA27929 for ; Wed, 26 Jul 2000 19:04:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA13706 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 19:07:00 -0400 Date: Wed, 26 Jul 2000 19:06:55 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] antitrust Message-ID: <20000726190655.C13660@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu just to catch up on the antitrust matter... 998 21 Q. What is limiting, if anything, about VA Linux's ability to 22 get into the desktop market? 23 MS. MILLER: Objection. Leading, foundation, 24 relevance. 25 THE COURT: I don't see the relevance, counsel. 996 1 What's the relevance? 2 MR. HERNSTADT: The relevance is that Mr. DiBona can 3 testify about why there is a disparity between the server 4 market and the operating system market for the general public 5 and the desktop. 6 THE COURT: What does that matter to this case? 7 MR. HERNSTADT: It matters because one of the reasons 8 it's different is the lack of applications and applications, 9 such as, for example, a DVD player. Those applications are 10 necessary to make an operating system generally attractive and 11 generally viable. 12 And to the extent that this case is about DeCSS and 13 DeCSS is a part of the reverse engineering project to bring 14 DVD players to the Linux operating system, Mr. DiBona can 15 testify that that's an essential ingredient in the viability 16 of Linux as an operating system. 17 THE COURT: What has that got to do with the issues 18 in this case? This isn't the Microsoft case. I could 19 understand this line of questioning in the Microsoft case. 20 MR. HERNSTADT: I understand, your Honor. I think 21 what it gives you is more as to the liquidity of reverse 22 engineering. 23 THE COURT: As to the -- 24 MR. HERNSTADT: To the presence of reverse 25 engineering. 997 1 THE COURT: To the presence of reverse engineering. 2 MR. HERNSTADT: That it is a normal and, in fact, 3 necessary part of building Linux applications, that the DVD 4 player application is a necessary part to make the Linux 5 operating system viable, and it was DeCSS was part with the 6 reverse engineering in order to give the DVD player a 7 presence. 8 I understand that when I was not here there were 9 discussions about antitrust and -- 10 THE COURT: That would be something of an 11 overstatement. 12 MR. HERNSTADT: O.K. I think that what this can 13 show, though, is that if Linux and if applications are not 14 made for Linux, then that will have an anti-competitive effect 15 on the Linux operating system and will deny -- make it much 16 more difficult for it to be viable, which will have an 17 anti-competitive effect. 18 THE COURT: What's that got to do with this case? 19 MR. HERNSTADT: We have an affirmative defense. 20 THE COURT: Your affirmative defense is that the DMCA 21 violates the antitrust laws. I expressed myself fully on that 22 last week. That's not a defense to anything. DMCA cannot apply to DeCSS because DMCA is unconstitutional. It is unconstitutional if it is interpreted as establishing a monopoly for any reason other than the Constitution's "to promote the progress of science and the useful arts." This is not merely a discussion of law. Defense should be able to present the FACTS that under the plaintiff's interpretation of the law MPAA/DVDCCA would be allowed to restrain trade in Linux DVD players, and that goes much further than any constitutional protection of copyright. Defense is allowed to plead that the Linux market exists and that this expert can testify on those facts of the market and the likely impact of the absence of a Linux DVD player. After all, plaintiffs were allowed to introduce testimony from a representative of MPAA that DeCSS potentially could affect their markets (what does that have to do with copyright)? And there is no need to show that anyone requested a license for Linux for a DVD player, since no license is in fact or law needed. 23 MR. HERNSTADT: I think, also, your Honor, in terms 24 of statutory construction, perhaps it gives a certain amount 25 of guidance that, if the statute permits, an interpretation as 998 1 opposed to another interpretation, if one interpretation 2 permits a situation that has anti-competitive effects and is 3 bad for the public, because of that, that perhaps that's 4 not -- that might be one of the factors that would -- 5 THE COURT: You know, the patent laws have an 6 anti-competitive effect. If a drug company finds the cure for 7 cancer and patents it, it will be the only drug company that 8 can sell it. They will charge whatever they want, and it will 9 be highly anti-competitive, and it will be perfectly legal 10 because the Patent Code so permits. So, I just don't get the 11 argument. Yes, but this is not a patent case. Just last week some proprietary drug companies agreed to modify their behavior after the FDA and FTC told them they were in restraint of trade by making secret agreements to keep generic drugs off the market, in an attempt to extend their patents. Patent protection does not grant a total monopoly--for example, it cannot conflict with the Constitution's required for "limited times." Yet the monopoly of MPAA/DVDCCA would extend for unlimited times under DMCA. If this is the principal reason that Congress passed DMCA, and this reason is unconstitutional (for both this reason and the free speech issue), then the entire DMCA must be struck down. Furthermore, defendants should be allowed to introduce testimony in this area because they potentially have a case against plaintiffs for misuse of copyright in restraint of trade; they are entitled to testimony as to how the copyright was used and in fact does this, since this is the trial about copyright to begin with. 12 MR. HERNSTADT: I understand, your Honor. This is 13 not a patent situation. The plaintiffs -- 14 MR. GARBUS: Your Honor, can I just briefly be heard 15 with regard to that? 16 THE COURT: I will hear you. 17 MR. GARBUS: I think the position that we take and 18 the answer says the DMCA as interpreted applied, it doesn't 19 say facially. And what it says is that if this Court or any 20 Court were to permit an anti-competitive situation, an 21 antitrust situation to create that, that would be -- that 22 would be an interpretation the DMCA made, which we believe 23 runs up against Sony, Sega, and the other issues. 24 I don't want to have the argument now. I think the 25 Court has expressed its feeling. I just did want to point out 999 1 that that is the position that we take to make it clear with 2 respect to this witness' testimony. And I know the Court 3 disagrees. 4 THE COURT: Ms. Miller? 5 MS. MILLER: As the Court has already stated, the 6 plaintiffs view this as completely irrelevant testimony. The 7 defendant has already admitted that he's not engaged 8 personally in reverse engineering activities. Of course this makes no difference. Unless plaintiffs admit that DeCSS is purely a result of reverse engineering and that such conduct is currently allowed by 1201, and so making hyperlinks to the result of the reverse engineering is legal too. 9 And as far as whether or not there is a DVD player 10 available, and if it's a Linux operating system, you've ^^^^^^^^^ No, only LiViD might have a DVD player available. 11 already heard testimony that other developers of DVD players 12 have sought and in certain instances obtained licensing from 13 the DVD-CCA and developed such players. Again, this adds ^^^^^^^^^ 14 nothing to the record. No, we have not confirmed that such DVD players have been "developed." The only DVD player that has been confirmed in testimony that has been developed is the one from LiViD. Plaintiffs have not explained how it is that one can even get a license to develop for Linux, and how that license is identical to "access control." Nor have plaintiffs rebutted the testimony that DeCSS was developed just in order to develop a Linux DVD player, nor any connection between DeCSS and a Linux DVD player except that both in their opinion are "unauthorized" and therefore illegal under DMCA. 15 THE COURT: I take it, Ms. Miller, that you don't 16 have any quarrel with the basic proposition that the ability 17 of any operating system, be it Linux or anything else, to 18 succeed in the marketplace is related to the extent to which 19 applications that run under that operating system are 20 available; is that true? 21 MS. MILLER: Theoretically and absolutely not. We 22 have no quarrel with that. 23 THE COURT: And not only theoretically, I take it you 24 have no quarrel with the proposition that that's true for 25 Linux. 1000 1 MS. MILLER: I don't know that that's true for Linux. 2 I don't think we've heard through this witness whether or not 3 that, in fact, is true. Well, we now hear exactly that, I hope. 4 THE COURT: Well, I was trying to save some time, but 5 I guess we are not going to save some time. 6 Go ahead, counsel. 7 MR. HERNSTADT: Thank you, your Honor. 8 Actually, could we have the last question and answer 9 read back before we went into the objection, your Honor? 10 THE COURT: Yes. 11 (Record read) 12 MR. HERNSTADT: Thank you. 13 A. There is a certain lack of applications for the desktop 14 market. For instance, office productivity and certain 15 vertical market applications for things like doctors, dentist 16 offices, and that sort of thing. You have to have a certain 17 number of applications before you can sell the personal 18 desktop, everything from software for small offices to large 19 ones, so... 20 Q. Is the DVD player one of the applications that your 21 company thinks would be necessary to make the Linux operating 22 system viable for the personal market? 23 MS. MILLER: Objection, relevance. 24 THE COURT: I'm going to hear it. 25 A. Basically multimedia is still very important for the 1001 1 personal market. If we were to sell to an end user, we would 2 have to be able to compete, and for DVD, CD, audio, the whole 3 thing. And most of that is that for Linux DVD is not because 4 of the -- it is just the manufacturers never made a player, 5 and when the people tried to write one themselves, the 6 developers out there on the net and such, they were met with 7 resistance, and that's why I'm here. And this is never rebutted, thanks! 8 Q. Is VA Linux doing anything to develop applications? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 19:12:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28090 for dvd-discuss-outgoing; Wed, 26 Jul 2000 19:12:44 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28087 for ; Wed, 26 Jul 2000 19:12:32 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA13717; Wed, 26 Jul 2000 19:14:42 -0400 Date: Wed, 26 Jul 2000 19:14:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000726191437.D13660@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D4D@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D4D@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Jul 26, 2000 at 03:46:47PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 03:46:47PM -0700, Richard Hartman wrote: >... > Does the DMCA specify anywhere just what may or may > not be considered a TPM? If specifically recognizes > software in the role of a TPM, then there may be a > conflict if software is recognized as speech. However, > if this specific recognition is not part of the DMCA then > in order to avoid conflict it must be interpreted such > that TPMs may only be hardware. That is to say, if you > have -circuitry- that scrambles bits, it would be a TPM > but -software- that scrambles bits would not qualify. Yes, I noticed this little dialogue at 1085: THE COURT: Dr. Touretzky, do people in your field of 18 endeavor sometimes make bits of hardware, computer hardware? 19 THE WITNESS: Yes, they do. 20 THE COURT: Are there circumstances in which it might 21 be helpful to a computer scientist to make a bit of hardware 22 as to which somebody else holds the patent? 23 THE WITNESS: Yes, I think so. So even if the interpretation is hardware only (which I agree with) then one might consider certain cases of that free speech as well--i.e., the patent monopoly is not total and overruling the First Amendment. Because as the court and Dr Touretzky seem to have concluded is that not only is there not much practical difference between natural language and subject code and object code, but insofar as the underlying hardware represents something of the same sort it too might be considered creative expression. I do think the framers of the DMCA had in mind something far from a computer scientist's reverse engineering code or building a box to test some computer science theory. They did put in "for commerical or personal financial gain"--for some reason. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 19:13:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28098 for dvd-discuss-outgoing; Wed, 26 Jul 2000 19:13:19 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28095 for ; Wed, 26 Jul 2000 19:13:17 -0400 Received: from agape.murphy.cx ([198.223.37.198]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA4D7A for ; Wed, 26 Jul 2000 19:13:05 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id TAA00981 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 19:11:18 -0400 Date: Wed, 26 Jul 2000 19:11:18 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented Message-ID: <20000726191118.A869@agape.murphy.cx> References: <5A8391CA2D9ED311AFAA080009D982B10B1D34@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Wed, Jul 26, 2000 at 03:26:58AM -0700, thus spake Jim Taylor: > It's apparently a common misperception that CSS is not patented. Parts of > CSS are patented. See http://www.patents.ibm.com/details?pn=US06021199__, > http://www.patents.ibm.com/details?pn=US05915018_, and related patents. There were discussions on the LiViD list many months ago about the patent status of CSS. My recollection of the opinions of the people who looked at the CSS-related patents in the IBM database was that they were for specific implimentations of CSS in hardware. One of the patents was for an implimentation of CSS in an ASIC, IIRC. That patent wouldn't cover a software implementation. I believe that the designers of CSS wanted to try for stronger protection than patents. Trade secrets was the way they went with (futile) protections against reverse engineering. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 19:17:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28228 for dvd-discuss-outgoing; Wed, 26 Jul 2000 19:17:29 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28225 for ; Wed, 26 Jul 2000 19:17:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA13732 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 19:20:15 -0400 Date: Wed, 26 Jul 2000 19:20:10 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] fire Message-ID: <20000726192010.E13660@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu 13 Q. Why did you create and post it? 14 A. I wanted to spare public discussion of these issues. This 15 case raises what for me are very serious concerns about the 16 future of computer science and my ability to function as a 17 computer scientist. 18 Q. Why? 19 A. Because what the plaintiffs are trying to do is carve a 20 hole in the First Amendment and say, this kind of speech you 21 can engage in and that kind of speech you can't. And as a 22 computer scientist, this is my livelihood. I've been 23 programming computers since I was 12 years old, and I'm very 24 concerned when events take place that threaten my ability to 25 express myself. 1079 1 THE COURT: Mr. Mervis. 2 MR. MERVIS: I move to strike that portion of the 3 answer which Dr. Touretzky purports to describe what the 4 plaintiffs are trying to do in this case and to the extent he 5 is, also, offering opinion about legal matters. 6 MR. ATLAS: I think it's the witness' perception of 7 how the plaintiffs' position in this case impacts what it is 8 that he does and how he communicates with his peers and his 9 students, and I think it's acceptable testimony. 10 THE COURT: To the very limited extent of the motion, 11 it's granted. I'm not taking Dr. Touretzky's view of the 12 First Amendment as evidence. His testimony presupposes a view 13 of the scope of the First Amendment on which he is not an 14 expert, which is not a proper subject for testimony and which 15 is ultimately for me and appellate courts to decide. But the facts are relevant. As we learn later, the facts about how computer scientists use code and express themselves in a way that is obviously protected are something that the judge has to take into consideration when he decides the extent to which he is willing to suppress free speech. 16 There is no doubt that yelling "fire" in crowded 17 theatre is something that is problematic and probably impedes 18 expression by certain twisted individuals. I'm not drawing a 19 one-to-one analogy. You know how dangerous one-to-one 20 relationships are this morning, but you see the point. What's the relevance here? Is he saying that one can decide these facts by discussing the law of speech and its history, or that he must decide whether there is a "clear and present danger" by means of taking testimony on the evidence of what actually happened? 21 MR. ATLAS: I think it explains why the witness is 22 here, but I may be -- 23 THE COURT: I understand that. I understand why he's 24 here. 25 BY MR. ATLAS: 1080 1 Q. By the way, the different ways that you have approached 2 communicating the DeCSS source code or the DeCSS code, would 3 those be the types of communication you may -- strike that. 4 These different ways of approaching the DeCSS code, 5 are those ways that you communicate with the people in -- your 6 peers, the other professors, the other faculty members? 7 A. Yes. We mix these techniques freely, and even on the same 8 page of a paper, you might have descriptions in English. You 9 might have mathematical equations, bits of code in a 10 acceptable programming language, bits of code in a language I 11 just made up because it's particularly convenient for trying 12 to express what I'm trying to express. We use all of these 13 forms of expression all the time. Okay, I think we finally got there safely? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 19:44:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA28548 for dvd-discuss-outgoing; Wed, 26 Jul 2000 19:44:06 -0400 Received: from mail.airbridge.net ([204.147.60.220]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA28545 for ; Wed, 26 Jul 2000 19:44:05 -0400 Received: from agape.murphy.cx ([198.223.37.198]) by mail.airbridge.net (Netscape Messaging Server 3.6) with ESMTP id AAA51CF for ; Wed, 26 Jul 2000 19:43:54 -0400 Received: (from murphy@localhost) by agape.murphy.cx (8.9.3/8.8.7) id TAA01602 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 19:42:45 -0400 Date: Wed, 26 Jul 2000 19:42:45 -0400 From: Roy Murphy To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented Message-ID: <20000726194245.C869@agape.murphy.cx> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0pre3i In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yea, verily on Wed, Jul 26, 2000 at 01:41:36PM -0700, thus spake Michael.A.Rolenz@aero.org: > They patented the Key management...putting the keys on the DVD.....Well > here's another example of the USPO patenting STUPIDITY. Not exactly. They patented a system whereby the video controller would receive encrypted data directly from the drive. This is an attempt to get around non-CSS rippers that yank the decrypted data out of the player's memory. If the unencrypted video isn't anywhere that the OS can see it, it can't be ripped. The next step in the protection of DVDs is high-speed communications busses that pass encrypted data between devicese so that other devices on the same bus can't snoop on it. -- Roy Murphy \ "For a successful technology, reality must take precedence murphy@panix.com \ over public relations, for Nature cannot be fooled" \ R.P. Feynman From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 20:08:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA28979 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:08:40 -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 UAA28976 for ; Wed, 26 Jul 2000 20:08:38 -0400 Message-ID: <20000727000734.3383.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Wed, 26 Jul 2000 17:07:34 PDT Date: Wed, 26 Jul 2000 17:07:34 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] antitrust 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 Eldred wrote: Kaplan said: > 5 THE COURT: You know, the patent laws have an > 6 anti-competitive effect. If a drug company finds the cure for > 7 cancer and patents it, it will be the only drug company that > 8 can sell it. They will charge whatever they want, and it will > 9 be highly anti-competitive, and it will be perfectly legal > 10 because the Patent Code so permits. So, I just don't get the > 11 argument. The Supreme Court says: "The Court has held many times that power gained through some natural and legal advantage such as a patent, copyright, or business acumen can give rise to liability if "a seller exploits his dominant position in one market to expand his empire into the next." [4 citations ommitted] Moreover, on the occasions when the Court has considered tying in derivative aftermarkets by manufacturers, it has not adopted any exception to the usual antitrust analysis, treating derivative aftermarkets as it has every other separate market. [3 citations omited]" Kodak v. Image Tech Svcs, 504 U.S. 451 (1992) The 9th Circuit continued in the same case: "First, as to antitrust liability, case law supports the proposition that a holder of a patent or copyright violates the antitrust laws by 'concerted and contractual behavior that threatens competition.'" "By responding in this fashion, the Court in Kodak supposed that intellectual property rights do not confer an absolute immunity from antitrust claims." Image Tech Svcs v. Kodak, 96-15293, (9th Cir. 1997) The facts of Kodak are well worth noting. Image Tech and others alleged that Kodak used its monopoly in the market for Kodak photocopier and micrographic parts to create a second monopoly in the equipment service markets. Kodak did hold certain patents on parts. Ultimately the courts held that parts and service were different markets and that IP protection in one market do not allow monopolistic behavior in 'derivative aftermarkets'. This is exactly what occurs in the DVD case. The studios own copyrights in movies alone -- the DMCA and Copyright Act provide them with an exclusive right to profit from access to these movies. This simply does not allow them to transfer control to the player market. The DMCA simply does not grant an exclusive right to authorize distribution of the means of access to a given work. Instead it bans distribution statutorily of the means to access if and only if such means allow circumvention defined as the act of access without the right to access. __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 20:24:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29287 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:24:06 -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 UAA29284 for ; Wed, 26 Jul 2000 20:24:05 -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 UAA05072; Wed, 26 Jul 2000 20:23:10 -0400 Message-Id: <200007270023.UAA05072@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.990, 993: typos? In-reply-to: Your message of "Wed, 26 Jul 2000 13:52:20 MDT." <20000726135219.A1892@localhost> Date: Wed, 26 Jul 2000 20:22:40 -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: : Day 6, p. 990, DiBona: : : 7 A. For graphical work stations. So, one of our clusters, : 8 already a graphical work station, is used by scientists and : 9 engineers to simulate or visualize data sites so that people : 10 can understand them, what kind of data they're working with. : : On line 9, sites ==> sets? : : Day 6, p. 993, DiBona: : : 13 THE WITNESS: Netcraft is an another market research : 14 site. What they do is they, using a program, sort of pull : 15 different machines on the Internet to see what they are : 16 running, and they put together a report based on that, and : 17 from this point they can tell if they're running Windows or : 18 Linux or whatever. : : On line 14, pull ==> poll? That was my guess, but I'm not doing very well at this sort of guessing game. -- 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 Jul 26 20:27:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29429 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:27:01 -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 UAA29426 for ; Wed, 26 Jul 2000 20:26:59 -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 UAA05100; Wed, 26 Jul 2000 20:26:13 -0400 Message-Id: <200007270026.UAA05100@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause In-reply-to: Your message of "Wed, 26 Jul 2000 13:56:42 MDT." <20000726135642.B1892@localhost> Date: Wed, 26 Jul 2000 20:26:13 -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: : Day 6, p. 998: : : 5 THE COURT: You know, the patent laws have an : 6 anti-competitive effect. If a drug company finds the cure for : 7 cancer and patents it, it will be the only drug company that : 8 can sell it. They will charge whatever they want, and it will : 9 be highly anti-competitive, and it will be perfectly legal : 10 because the Patent Code so permits. So, I just don't get the : 11 argument. : : Patents give monopolies on devices or processes to _inventors_. They : do not give a monopoly to _authors_. Nor does copyright give _authors_ : a monopoly on _devices or processes_. : : Monopoly, or monopoly-like effects on the traditional domain of patents : by the domain of copyright would seem fair game for consideration by a : court. Both copyrights and patents are traditionally referred to as monopolies. But it is an abuse of the copyright or patent to use it to extend the monopoly to cover matters not included in the grant. -- 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 Jul 26 20:41:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29849 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:41:26 -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 UAA29846 for ; Wed, 26 Jul 2000 20:41:24 -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 UAA05190; Wed, 26 Jul 2000 20:40:30 -0400 Message-Id: <200007270040.UAA05190@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-reply-to: Your message of "Wed, 26 Jul 2000 17:01:20 EDT." Date: Wed, 26 Jul 2000 20:40:00 -0400 From: "Peter D. Junger" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "Arnold G. Reinhold" writes: : This case is being brought under DMCA. Once you conclude that : computer code is speech, then the only way plaintiffs can prevail is : if DMCA imposes some new, constitutionally permissible, restriction : on free speech. But Congress expressly disavowed any such intention. : DCMA states in 1201d(4): "Nothing in this section shall enlarge or : diminish any rights of free speech or the press for activities using : consumer electronics, telecommunications, or computing products." So : there is no need to ask about standards of First Amendment scrutiny : because Congress steered clear of freedom of speech issues within the : law itself. : : Am I missing something? Nothing but the Judge's reference to O'Brien. I, of course, think that you are right, but I really get the sense that lots of judges and law professors are convinced that there should be an additional category of relatively unprotected speech like speech that endangers national security, commercial speech, and pornography, viz., speech by programmers. Kaplan seems to be able to understand what programming is about, so he may not exhibit that prejudice. But I fear that there are lots of lawyers who are frightened by the magical powers that seem to be inherent in programs. At least I know of no movement to burn programmers at the stake, so far. -- 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 Jul 26 20:41:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA29857 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:41:41 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA29854 for ; Wed, 26 Jul 2000 20:41:39 -0400 Received: by aero.org id <17089-6>; Wed, 26 Jul 2000 17:41:00 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdIAAa03464; Wed Jul 26 17:40:53 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 17:40:29 -0700 Subject: Re: [dvd-discuss] CSS patented To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 05:40:29 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 17:40:58 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "fairly imprecise language"- Not surprising. Having gone through this recently, you'd be amazed what a simple well written technical description can be come after a patent attourney gets through with it.. Jeremy Erwin @eon.law.harvard.edu on 07/26/2000 02:24:28 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] CSS patented >Yes that would work...but then they shouldn't be whining that the >encryption algorithms was cracked in court. ...actually I just looked at >the patent > >http://www.patents.ibm.com/cgi-bin/viewpat.cmd/US05915018__ > Actually, this patent refers to an "improvement" over the existing regime: The new system provides cancellation of payer keys (I assume by modem.). The patent is owned by Intel, BTW. The patent is written in a fairly imprecise language (IMHO) and I don't really understand all the details, though. Jeremy Erwin From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 20:52:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32252 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:52:12 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA32249 for ; Wed, 26 Jul 2000 20:52:10 -0400 Received: by aero.org id <17090-4>; Wed, 26 Jul 2000 17:51:29 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCAAa04019; Wed Jul 26 17:51:26 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 17:49:40 -0700 Subject: Re: [dvd-discuss] Trial, day 6, p.1079: "Fire!" in a theater To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 05:49:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 17:51:27 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed! As you point out Holmes used that analogy 70-80 yrs ago and without understanding the time he used it, it is often misquoted. I think I like yours better. What people also forget is that what he meant is that freedom of speech is NOT a defense against irresponsible actions either. John Schulien @eon.law.harvard.edu on 07/26/2000 03:28:17 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] Trial, day 6, p.1079: "Fire!" in a theater Day 6, p. 1079: 16 There is no doubt that yelling "fire" in crowded 17 theatre is something that is problematic and probably impedes 18 expression by certain twisted individuals. I'm not drawing a 19 one-to-one analogy. You know how dangerous one-to-one 20 relationships are this morning, but you see the point. Misuse of this analogy drives me up the wall. It was a very appropriate analogy back in the days when theatre fires regularly killed hundreds of people at a time ... but these days theatres in general are so safe that the analogy is meaningless and often misconstrued. I hear people say things like, "You are not allowed to use speech that annoys people, like yelling "fire" in a crowded theatre, which interrupts other people are trying to watch the movie ..." A better analogy would be: You see someone peering nervously into an open elevator shaft. You sneak up behind her and scream "BOO!", causing her to jump to her death. You claim "freedom of speech". This doctrine simply says that you don't have the right to use speech in such a way as to cause injury or death due to involuntary panic, nothing more. There is absolutely nothing about DeCSS that could cause involuntary panic leading to death or physical injury, and I am a bit disturbed that Kaplan is tossing this analogy around as if it were to apply ... It's sloppy thinking. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 20:57:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA32529 for dvd-discuss-outgoing; Wed, 26 Jul 2000 20:57:19 -0400 Received: from hotmail.com (f36.law9.hotmail.com [64.4.9.36]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id UAA32526 for ; Wed, 26 Jul 2000 20:57:18 -0400 Received: (qmail 57083 invoked by uid 0); 27 Jul 2000 00:56:23 -0000 Message-ID: <20000727005623.57082.qmail@hotmail.com> Received: from 38.30.236.190 by www.hotmail.com with HTTP; Wed, 26 Jul 2000 17:56:22 PDT X-Originating-IP: [38.30.236.190] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause Date: Wed, 26 Jul 2000 20:56:22 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The very idea that DMCA can prohibit trafficin in "circumvention devices" grants a PERMANENT exclusive right to the "useful art" of access control. The constitution spells out that exclusive rights for inventors can only be granted for limited times. Thus the anti-circumvention section is unconstitutional. The DMCA makes no requirement for patents to be filed (or other explanatory disclosures), and so the exclusive rights granted to the "legitimate" sales of access control devices/technologies also fails to "promote the advancement of science and useful arts". On another note, I've examined the CSS patents and it is my opinion that neither DeCSS nor LiVid infringe them, but I'm an engineer, not a lawyer. That is likely another reason that no patent action is evident. For the record, making a system that creates a DVD-CSS compatible disk might well infringe the patents, but then what honest person would want to CSS encode their movie? >Day 6, p. 998: > > 5 THE COURT: You know, the patent laws have an > 6 anti-competitive effect. If a drug company finds the cure for > 7 cancer and patents it, it will be the only drug company that > 8 can sell it. They will charge whatever they want, and it will > 9 be highly anti-competitive, and it will be perfectly legal > 10 because the Patent Code so permits. So, I just don't get the > 11 argument. > >Patents give monopolies on devices or processes to _inventors_. They >do not give a monopoly to _authors_. Nor does copyright give _authors_ >a monopoly on _devices or processes_. > >Monopoly, or monopoly-like effects on the traditional domain of patents >by the domain of copyright would seem fair game for consideration by a >court. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:10:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA01295 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:10:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA01292 for ; Wed, 26 Jul 2000 21:10:14 -0400 Received: by aero.org id <17089-6>; Wed, 26 Jul 2000 18:09:34 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa05164; Wed Jul 26 18:09:25 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:09:02 -0700 Subject: Re: [dvd-discuss] Source code versus Object Code (executable) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 06:09:01 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 18:09:28 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No they don't seem to want to burn programmers (e.g., Visual Basic), only people who know how to read object code. "Peter D. Junger" @eon.law.harvard.edu on 07/26/2000 05:42:10 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) "Arnold G. Reinhold" writes: : This case is being brought under DMCA. Once you conclude that : computer code is speech, then the only way plaintiffs can prevail is : if DMCA imposes some new, constitutionally permissible, restriction : on free speech. But Congress expressly disavowed any such intention. : DCMA states in 1201d(4): "Nothing in this section shall enlarge or : diminish any rights of free speech or the press for activities using : consumer electronics, telecommunications, or computing products." So : there is no need to ask about standards of First Amendment scrutiny : because Congress steered clear of freedom of speech issues within the : law itself. : : Am I missing something? Nothing but the Judge's reference to O'Brien. I, of course, think that you are right, but I really get the sense that lots of judges and law professors are convinced that there should be an additional category of relatively unprotected speech like speech that endangers national security, commercial speech, and pornography, viz., speech by programmers. Kaplan seems to be able to understand what programming is about, so he may not exhibit that prejudice. But I fear that there are lots of lawyers who are frightened by the magical powers that seem to be inherent in programs. At least I know of no movement to burn programmers at the stake, so far. -- 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 Jul 26 21:21:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA03413 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:21:55 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA03409 for ; Wed, 26 Jul 2000 21:21:54 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id VAA32332 for ; Wed, 26 Jul 2000 21:21:21 -0400 Date: Wed, 26 Jul 2000 21:21:21 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) 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 07/26/00 at 18:09, 'twas brillig and Michael.A.Rolenz@aero.org scrobe: > > No they don't seem to want to burn programmers (e.g., Visual Basic), only > people who know how to read object code. Someone who claims programming experience solely on the basis of VB doth not a programmer make. Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:26:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA04559 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:26:40 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA04556 for ; Wed, 26 Jul 2000 21:26:39 -0400 Received: by aero.org id <17090-6>; Wed, 26 Jul 2000 18:25:57 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBAAa05857; Wed Jul 26 18:25:49 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:25:17 -0700 Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 06:25:16 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 18:25:57 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu That's an interesting argument. The DMCA is creating a new exclusive right, access control, which is NOT a patent, a copyright, or trademark or publically disclosed AND is also not limited in time. It certainly advances no art or science. Certainly also, the access control extends beyond the copyright life and it is irrelevant that the original purchaser of the DVD may not be alive to complain about that.... "Harold Eaton" @eon.law.harvard.edu on 07/26/2000 05:57:51 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause The very idea that DMCA can prohibit trafficin in "circumvention devices" grants a PERMANENT exclusive right to the "useful art" of access control. The constitution spells out that exclusive rights for inventors can only be granted for limited times. Thus the anti-circumvention section is unconstitutional. The DMCA makes no requirement for patents to be filed (or other explanatory disclosures), and so the exclusive rights granted to the "legitimate" sales of access control devices/technologies also fails to "promote the advancement of science and useful arts". On another note, I've examined the CSS patents and it is my opinion that neither DeCSS nor LiVid infringe them, but I'm an engineer, not a lawyer. That is likely another reason that no patent action is evident. For the record, making a system that creates a DVD-CSS compatible disk might well infringe the patents, but then what honest person would want to CSS encode their movie? >Day 6, p. 998: > > 5 THE COURT: You know, the patent laws have an > 6 anti-competitive effect. If a drug company finds the cure for > 7 cancer and patents it, it will be the only drug company that > 8 can sell it. They will charge whatever they want, and it will > 9 be highly anti-competitive, and it will be perfectly legal > 10 because the Patent Code so permits. So, I just don't get the > 11 argument. > >Patents give monopolies on devices or processes to _inventors_. They >do not give a monopoly to _authors_. Nor does copyright give _authors_ >a monopoly on _devices or processes_. > >Monopoly, or monopoly-like effects on the traditional domain of patents >by the domain of copyright would seem fair game for consideration by a >court. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:26:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA04436 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:26:33 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA04432 for ; Wed, 26 Jul 2000 21:26:31 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA28689 for ; Wed, 26 Jul 2000 18:25:53 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA28748; Wed, 26 Jul 2000 18:23:52 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention Date: 26 Jul 2000 18:22:42 -0700 Organization: A poorly-installed InterNetNews site Lines: 51 Distribution: isaac Message-ID: <8lo2t2$s29$1@blowfish.isaac.cs.berkeley.edu> References: <20000725175356.C4026@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > Day 1, page 25: > > 9 Q. And what kind of disks will authorized players play? > > 10 A. Well, to my knowledge authorized players play compliant > 11 disks. > > 12 Q. Should they play other disks? > > 13 A. I believe it's a requirement, a licensing requirement that > 14 they be constructed to not play unlicensed disks. > > Hunh? Regardless of what the license says, the "design" of the CSS system > simply doesn't permit what Shamos says on lines 13,14 is required by > the license. Good observation! I can't imagine what the witness meant by an "unlicensed disk". It's not even clear to me that there is any way to construe it as a meaningful concept. Disks aren't licensed; players are. What could the witness possibly have meant? But, in any case, I don't think it matters. It seems to me that, even if disks are licensed, DeCSS doesn't circumvent them unless all DVD players do. Any disk that is not encrypted with CSS is playable by most DVD players, right? So, even if there is some sensible definition of a "licensed disk", this fact makes it clear that CSS -- and thus DeCSS -- is irrelevant to the issue. In other words, this "unlicensed disk" business is not just a failure on our part to understand their authority model; the very concept is absurd on its face. If DeCSS doesn't circumvent, 1201(a) is not implicated. If DeCSS does circumvent the licensing conditions on disks, then all current DVD players do, too, and all DVD players must be banned if DeCSS is. I hope Kaplan notices that the "licensed disk" theory of circumvention is nonsensical. If DeCSS circumvents, it circumvents the playing process, not some hypothetical disk licensing regime. This looks like a flat-out mis-statement from a witness who doesn't really understand the DVD authority structure. (No big surprise there; did _anyone_ claim to be able to articulate it clearly?) If the plaintiffs can't produce even a vaguely-credible authority structure, it would seem to bolster the case that DeCSS doesn't even circumvent anything, not even the playing process; if there's no authority structure, there's no 1201(a)-circumvention. You can't just make one up after the fact, as you go along. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:32:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA04945 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:32:24 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA04942 for ; Wed, 26 Jul 2000 21:32:22 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA28716 for ; Wed, 26 Jul 2000 18:31:44 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA28777; Wed, 26 Jul 2000 18:29:43 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Date: 26 Jul 2000 18:29:34 -0700 Organization: A poorly-installed InterNetNews site Lines: 16 Distribution: isaac Message-ID: <8lo39u$s38$1@blowfish.isaac.cs.berkeley.edu> References: <20000726000943.26582.qmail@web510.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I still don't understand this monopoly theory, and especially not how quote you posted about "exploiting a monopoly in one market to expand into other markets, or to enhance a monopoly in a second market" might apply here. Who's the monopolist here? Not any one movie studio; they've got plenty of competition. Not the MPAA; it's not selling anything. Not the player manufacturers; they've got tons of competitors, too. Have any of the movie studios used their hold on copyright to start taking over the player market? I haven't seen any evidence of it. Have any of the player manufacturers used their possession of a license to start putting movie studios out of business? Not likely. Just because I don't understand doesn't mean the theory is wrong, of course. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:40:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA06768 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:40:37 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA06765 for ; Wed, 26 Jul 2000 21:40:36 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA28750 for ; Wed, 26 Jul 2000 18:39:57 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA28813; Wed, 26 Jul 2000 18:37:57 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Shotgun Analogy Date: 26 Jul 2000 18:37:47 -0700 Organization: A poorly-installed InterNetNews site Lines: 23 Distribution: isaac Message-ID: <8lo3pb$s4c$1@blowfish.isaac.cs.berkeley.edu> References: <60.551d2c1.26ae6beb@cs.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > It does have merit to it, our own government regards encryption as an > armament, why not take the next step and extend it the constitutional > freedoms armaments get? Oh, boy. Let me express a simple plea not to go there. I've watched plenty of debates on whether export controls on crypto are constitutional, and let me tell you, the second amendment one is a real loser in my book. (Without going into details, I'll simply note that the courts have typically _not_ read the second amendment as providing a right to armament. Framing this as a gun rights issue is just asking for the courts to rule that, just as guns may be licensed and restricted and banned and controlled without violating the constitution, so may crypto. That's hardly a winning position, from my point of view. But, then again, that's just my perspective.) (Note also that seems to be little evidence that the government regards crypto as armament these days. It used to be controlled by an arms control act known as the ITAR, which was a pretty weak argument for viewing it as a firearm anyway. Nonetheless, even that reasoning is no longer valid anymore now that export controls have been moved to the EAR, in the same act with scuba diving gear, Sony Playstations (or are they legal to export without a license now?), and other assorted sundries.) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:50:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA07744 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:50:21 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA07741 for ; Wed, 26 Jul 2000 21:50:19 -0400 Received: by aero.org id <17094-3>; Wed, 26 Jul 2000 18:49:36 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa06877; Wed Jul 26 18:49:27 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:48:34 -0700 Subject: Re: [dvd-discuss] Source code versus Object Code (executable) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 06:48:33 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 18:49:28 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I'm glad you got my point. One thing I've come to realize watching this trial is that while the numbers of computers,software,and people working with them has increased considerably in the last 22 yrs since I first punched a deck of cards, the understanding of what goes on or how it is done is understood by a decreasing percentage of people. Stuff like VB give people the illusion that they are the stuff of programming legends when in fact its just predigested programming. Ole Craig @eon.law.harvard.edu on 07/26/2000 06:22:35 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Source code versus Object Code (executable) On 07/26/00 at 18:09, 'twas brillig and Michael.A.Rolenz@aero.org scrobe: > > No they don't seem to want to burn programmers (e.g., Visual Basic), only > people who know how to read object code. Someone who claims programming experience solely on the basis of VB doth not a programmer make. Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:51:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA08171 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:51:40 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA08070 for ; Wed, 26 Jul 2000 21:51:38 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id SAA28857 for ; Wed, 26 Jul 2000 18:51:00 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA28835; Wed, 26 Jul 2000 18:48:59 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: 26 Jul 2000 18:47:52 -0700 Organization: A poorly-installed InterNetNews site Lines: 38 Distribution: isaac Message-ID: <8lo4c8$s52$1@blowfish.isaac.cs.berkeley.edu> References: <20000725201958.A619@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore wrote: > Day 1, p. 37, Shamos: > > 20 Now, copying to a hard drive is something that > 21 compliant DVD players are not allowed to do, because once the > 22 materials are copied to the hard drive they can be freely > 23 played, freely edited, freely distributed. Of course, he left one thing out: once the materials are shown on the computer screen, stored in RAM, or decoded in any way in software, they can be freely played, freely edited, freely distributed. This is why software players and security are fundamentally incompatible. All the hard disk nonsense is just, well, nonsense. (Yes, it can prevent an unsavvy user from copying the disk, if that unsavvy user hasn't been educated on how to copy DVD's. No, it can't prevent piracy worth a bean, and the designers knew that, and weren't afraid to say it. Yes, writing to hard disk lowers the copying barrier, because the time window is larger. No, it doesn't add any security against determined pirates, because the barrier was already too low.) By the way, on many computers, if you don't have enough physical memory (or if you switch tasks to another application while the DVD player is running, and that other application uses a fair amount of memory), I'd imagine that the unencrypted content could easily be swapped or paged out to hard disk, unless the software players take extraordinary measures to prevent this. (I know a little about it, because as a cryptographer, one has to worry about keys being swapped or paged to disk and staying there for a while. Every cryptographer I've spoken says it is hard, if not impossible, to reliably prevent this on most Windows platforms.) > Compliant with the license, there is no technological requirement that > DVD players are unable to write to disk --- disk, RAM, video subsystem > are all the same from a fundamental view. Really? I hadn't seen that, but it's an interesting tidbit. Can you point me to where in the license it says that? And, while you're at it, can you point me to a recent copy of the text of the license? From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:55:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA08852 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:55:09 -0400 Received: from ts0210.bates.edu (root@ts0201.bates.edu [134.181.72.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA08849 for ; Wed, 26 Jul 2000 21:55:06 -0400 Received: from localhost (sam@localhost) by ts0210.bates.edu (8.9.3/8.9.3) with ESMTP id WAA01066 for ; Wed, 26 Jul 2000 22:01:15 -0500 X-Authentication-Warning: ts0210.bates.edu: sam owned process doing -bs Date: Wed, 26 Jul 2000 22:01:13 -0500 (CDT) From: sam th To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case In-Reply-To: <8lo39u$s38$1@blowfish.isaac.cs.berkeley.edu> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 On 26 Jul 2000, David A. Wagner wrote: > I still don't understand this monopoly theory, and especially not how > quote you posted about "exploiting a monopoly in one market to expand > into other markets, or to enhance a monopoly in a second market" might > apply here. > > Who's the monopolist here? Not any one movie studio; they've got plenty > of competition. Not the MPAA; it's not selling anything. Not the player > manufacturers; they've got tons of competitors, too. The first thing to note is tht the anti-trust acts prohibit "combinations in restraint of trade", not monopolies per se. Second, the members of the MPAA (individually) and the members of the DVDCCA (collectively) have entered into an agreement, requiring that certain conditions be met in order to make particular products. Since the IP is not in these products, but in a different market (movies) Kodak tells us why they cannot use that monopoly to restrain trade in another market. In short, the MPAA got together with the DVDCCA to agree to limit the range of products offered to consumers, and to prevent anyone not in their club from making a competing product. I think that's clear anti-trust law violation. sam th sam@uchicago.edu http://www.abisource.com/~sam/ -----BEGIN PGP SIGNATURE----- Version: GnuPG v1.0.1 (GNU/Linux) Comment: For info see http://www.gnupg.org iD8DBQE5f6X6t+kM0Mq9M/wRAiAsAJ90oL18kL294mNPnSJy9DuSkvOMXwCeLYWq 5LrpEaggISGgxJPf9uVx5bw= =YP+V -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 21:58:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA09381 for dvd-discuss-outgoing; Wed, 26 Jul 2000 21:58:19 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA09378 for ; Wed, 26 Jul 2000 21:58:18 -0400 Received: by aero.org id <17091-5>; Wed, 26 Jul 2000 18:57:34 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBAAa07130; Wed Jul 26 18:57:16 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:57:10 -0700 Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 06:57:09 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 18:57:21 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It's not a monopoly. Studios, MPAA, CSS and Players are all acting together. That forms a trust that controls the DVD market. Previously you asked "I can't imagine what the witness meant by an "unlicensed disk"." I'm beginning to wonder if an unlicensed disk is one that does NOT use CSS. Consider this. Suppose I desired to enter the DVD market (it worked on direct to video didn't it? or did it?) but I decide that I will not use CSS or pay their licence fees etc. Is this an unlicensed disk? daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/26/2000 06:32:51 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case I still don't understand this monopoly theory, and especially not how quote you posted about "exploiting a monopoly in one market to expand into other markets, or to enhance a monopoly in a second market" might apply here. Who's the monopolist here? Not any one movie studio; they've got plenty of competition. Not the MPAA; it's not selling anything. Not the player manufacturers; they've got tons of competitors, too. Have any of the movie studios used their hold on copyright to start taking over the player market? I haven't seen any evidence of it. Have any of the player manufacturers used their possession of a license to start putting movie studios out of business? Not likely. Just because I don't understand doesn't mean the theory is wrong, of course. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:00:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA09990 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:00:51 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA09987 for ; Wed, 26 Jul 2000 22:00:50 -0400 Received: by aero.org id <17090-4>; Wed, 26 Jul 2000 19:00:07 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa07232; Wed Jul 26 19:00:00 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 18:59:46 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/26/2000 06:59:46 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Wed, 26 Jul 2000 19:00:02 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I thought the original posting was in jest. I agree it won't really go anywhere except as a reductio ad absurdim argument. daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/26/2000 06:41:04 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy > It does have merit to it, our own government regards encryption as an > armament, why not take the next step and extend it the constitutional > freedoms armaments get? Oh, boy. Let me express a simple plea not to go there. I've watched plenty of debates on whether export controls on crypto are constitutional, and let me tell you, the second amendment one is a real loser in my book. (Without going into details, I'll simply note that the courts have typically _not_ read the second amendment as providing a right to armament. Framing this as a gun rights issue is just asking for the courts to rule that, just as guns may be licensed and restricted and banned and controlled without violating the constitution, so may crypto. That's hardly a winning position, from my point of view. But, then again, that's just my perspective.) (Note also that seems to be little evidence that the government regards crypto as armament these days. It used to be controlled by an arms control act known as the ITAR, which was a pretty weak argument for viewing it as a firearm anyway. Nonetheless, even that reasoning is no longer valid anymore now that export controls have been moved to the EAR, in the same act with scuba diving gear, Sony Playstations (or are they legal to export without a license now?), and other assorted sundries.) From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:02:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10046 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:02:33 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10043 for ; Wed, 26 Jul 2000 22:02:32 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id TAA28891 for ; Wed, 26 Jul 2000 19:01:53 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id SAA28862; Wed, 26 Jul 2000 18:59:53 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] authorization Date: 26 Jul 2000 18:59:43 -0700 Organization: A poorly-installed InterNetNews site Lines: 32 Distribution: isaac Message-ID: <8lo52f$s5t$1@blowfish.isaac.cs.berkeley.edu> References: <5A8391CA2D9ED311AFAA080009D982B10B1D43@mail2.onetouch.com> <20000725225240.B12564@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred wrote: > Sounds like this point needs to be carefully placed > in the record. This case is not a licensing case, > is it, under UCITA? It's a copyright case and there > must be plenty of precedent for fair use after first > sale. Because if Kaplan denies that he must be > assuming that DMCA took away all rights of the first > sale, under law, and there is no question of fact > as to what the license is, or the fair use rights > (even though the law specifically states that the > consumer still enjoys fair use). It's not a copyright case, if by that you mean a copyright infringement or contributory infringement. It's a case under 1201(a). Fair use is an explicit defense to copyright infringement actions. Kaplan has ruled that 1201(a) does not admit a fair use defense. (I feel certain that this point has been mentioned before on this list...) I can't see any place where Kaplan has denied that DMCA takes any right under first sale, and I wouldn't rely on him to issue any such denials. What he _has_ said is that, in absence of other considerations, one would normally expect more recent laws to supersede previous laws. If that means that small portions of the right to first sale are slightly amended by the passage of the DMCA, well, I wouldn't rely on Kaplan to feel like that forces him to rule for the defendants. After all, why should he? If you like, you can argue that all of first sale is protected under the constitution, and that the constitution does not allow the DMCA to affect the "right" to first sale usage in the way that it has, but that seems like a pretty involved question for debate right there, and there seems to be some evidence that Kaplan might prefer to leave the constitutional questions to the appeals courts. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:02:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10038 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:02:27 -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 WAA10035 for ; Wed, 26 Jul 2000 22:02:26 -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:2.21) with ESMTP id WAA05201; Wed, 26 Jul 2000 22:01:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA22094; Wed, 26 Jul 2000 22:01:31 -0400 (EDT) Date: Wed, 26 Jul 2000 22:01:31 -0400 (EDT) Message-Id: <200007270201.WAA22094@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-Reply-To: <20000726191437.D13660@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D4D@mail2.onetouch.com> <20000726191437.D13660@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Yes, I noticed this little dialogue at 1085: > > THE COURT: Dr. Touretzky, do people in your field of > 18 endeavor sometimes make bits of hardware, computer hardware? > 19 THE WITNESS: Yes, they do. > 20 THE COURT: Are there circumstances in which it might > 21 be helpful to a computer scientist to make a bit of hardware > 22 as to which somebody else holds the patent? > 23 THE WITNESS: Yes, I think so. > > So even if the interpretation is hardware only (which > I agree with) then one might consider certain cases > of that free speech as well--i.e., the patent monopoly > is not total and overruling the First Amendment. Hmmm... it didn't look to me as if Kaplan had completely bought into the expressiveness of code at that point, so that looked to me like an incipient rationale for some sort of balancing argument --- patents demonstrate that Congress can ban some "useful" forms of research, to serve progress in a larger way, or something like that. (BTW, technically even the distinction between software and hardware is starting to erode --- a lot of hardware design is tried, and some even shipped, as "programmable logic devices", which are completely generic silicon packages into which a wiring diagram is loaded in order to configure them for a particular purpose. The description of the wiring diagram is rarely thought of as a set of instructions, but it's difficult to draw a hard and fast line). rst From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:05:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10177 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:05:10 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10174 for ; Wed, 26 Jul 2000 22:04:59 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA13912; Wed, 26 Jul 2000 22:07:43 -0400 Date: Wed, 26 Jul 2000 22:07:38 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000726220738.F13660@eldritchpress.org> References: <200007270040.UAA05190@samsara.law.cwru.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007270040.UAA05190@samsara.law.cwru.edu>; from junger@samsara.law.cwru.edu on Wed, Jul 26, 2000 at 08:40:00PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 08:40:00PM -0400, Peter D. Junger wrote: >... > ... I really get the sense that lots of judges and > law professors are convinced that there should be an additional category > of relatively unprotected speech like speech that endangers national > security, commercial speech, and pornography, viz., speech by programmers. > > Kaplan seems to be able to understand what programming is about, so > he may not exhibit that prejudice. But I fear that there are lots of > lawyers who are frightened by the magical powers that seem to be inherent > in programs. At least I know of no movement to burn programmers at the > stake, so far. It might be of some consolation to learn that a previous technology implementor narrowly escaped being burned at the stake`for similar "copying without authorization," at least according to legend. Johann Gutenberg's partner, Johan Fuerst, is said to have sued Gutenberg over some contract dispute and thus gained sole control over the press that Gutenberg had invented and the Bibles that he had printed but were unsold. Fuerst then took them to Paris and tried to sell them as hand-crafted manuscripts, because as yet there was no market for printed books. The monasteries who saw the new books were horrified. Not only did it threaten their market in hand copying, but it also seemed to them the work of the Devil, since each copy was uncannily alike. So they took Fuerst before the Inquisition, which investigated and was about to burn him at the stake. I don't know what happened then--did a computer scientist appear to teach them about freedom of speech and press? Did he appeal to the Supreme Court and get off when this predecessor of DMCA was ruled unconstitutional? Or was the judge as smart as Kaplan and let him off with a thanks for the lesson in technology? In any case, the monastery business did not go bankrupt and printed books flourished thereafter. We all got more freedom. And nobody was killed or put in prison or subject to the magical spell of the Devil. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:28:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA10961 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:28:34 -0400 Received: from dial119.roadrunner.com (dial119.cybermesa.com [209.12.75.119] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA10956 for ; Wed, 26 Jul 2000 22:28:29 -0400 Received: (from paul@localhost) by dial119.roadrunner.com (8.8.7/8.8.7) id UAA03222 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 20:29:02 -0600 Date: Wed, 26 Jul 2000 20:29:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Message-ID: <20000726202900.A2829@localhost> References: <20000725201958.A619@localhost> <8lo4c8$s52$1@blowfish.isaac.cs.berkeley.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <8lo4c8$s52$1@blowfish.isaac.cs.berkeley.edu>; from daw@cs.berkeley.edu on Wed, Jul 26, 2000 at 06:47:52PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 06:47:52PM -0700, David A. Wagner wrote: > Paul Fenimore wrote: > > Day 1, p. 37, Shamos: > > > > 20 Now, copying to a hard drive is something that > > 21 compliant DVD players are not allowed to do, because once the > > 22 materials are copied to the hard drive they can be freely > > 23 played, freely edited, freely distributed. [ ... ] > > Compliant with the license, there is no technological requirement that > > DVD players are unable to write to disk --- disk, RAM, video subsystem > > are all the same from a fundamental view. > > Really? I hadn't seen that, but it's an interesting tidbit. Can you > point me to where in the license it says that? And, while you're at it, > can you point me to a recent copy of the text of the license? I think we're mis-understanding or I'm being unclear. I'm simply saying that "compliant DVD players are not allowed to do" _is_ a result of compliance with a license, not with the design of some crypto algorithms. The licenses are in court record, but they are sealed. I've never read them, I'm relying on Mr. Shamos' testimony when I say the license, and not a technological requirement, forbids writing to disk "as a feature". Process of elimination, it can't be technology, Shamos says it is required, --> it is the contract. Hopefully we will not have to rely solely on Mr. Shamos' testimony too much longer: >From day 6, p. 1148: 10 MR. HERNSTADT: Just to save Mr. Atlas on this point, 11 it's not all of the licenses. There are over a hundred 12 licenses. It's a selection of licenses for different 13 purposes, for making hardware, for making players, for doing 14 different things. There are 12 different licenses, and it's a 15 selection. Maybe not as limited as it will be tomorrow. 16 THE COURT: All right. Work on it. 17 MR. ATLAS: In any event, I would make a motion to 18 unseal. 19 THE COURT: Write a letter with the other side 20 responding, and I gather that you ought to copy the DVD-CCA 21 lawyers on it. From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 22:31:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA11050 for dvd-discuss-outgoing; Wed, 26 Jul 2000 22:31:38 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA11047 for ; Wed, 26 Jul 2000 22:31:37 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id WAA11171; Wed, 26 Jul 2000 22:31:04 -0400 (EDT) Message-ID: <397F9F3B.E0E2D1A2@mit.edu> Date: Wed, 26 Jul 2000 22:32:27 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention References: <20000725175356.C4026@localhost> <8lo2t2$s29$1@blowfish.isaac.cs.berkeley.edu> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "David A. Wagner" wrote: > I can't imagine what the witness meant by an "unlicensed disk". It's not > even clear to me that there is any way to construe it as a meaningful > concept. Disks aren't licensed; players are. What could the witness > possibly have meant? I can imagine what the witness meant by an "unlicensed disk". If you go to the DVD CCA (http://www.dvdcca.org), you will discover that there are lots of CSS licenses. There are licenses for player manufacturers, disk manufacturers and content producers (all for using various aspects of CSS --- either the encryption or decryption piece, I think). I would imagine the term "unlicensed disk" refers to disks that have been CSS-encrypted without licensing the CSS-encryption technology from the DVD CCA (whether or not the the encryption was done on behalf of the copyright owner or by a third party). Of course, as long as the "unlicensed disk" uses the trade secret player keys (all of which have fallen), there's no reason why the "unlicensed disk" wouldn't play in a regular DVD player, so DeCSS would be as circumventing (or not) as any other DVD player. So the notion that DVD players can be constructed to play only "licensed disks" is nonsensical. We probably have to keep pounding on this point: DeCSS is an _implementation_ of CSS not a circumvention device. It decrypts DVDs whenever any other DVD player would and fails to decrypt them when any other DVD player would not. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 23:15:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA12525 for dvd-discuss-outgoing; Wed, 26 Jul 2000 23:15:07 -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 XAA12522 for ; Wed, 26 Jul 2000 23:15:06 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id XAA09505; Wed, 26 Jul 2000 23:14:33 -0400 Date: Wed, 26 Jul 2000 23:14:33 -0400 From: Jim Bauer Message-Id: <200007270314.XAA09505@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Newsgroups: local.dvd-discuss In-Reply-To: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu sam th wrote: > >On 26 Jul 2000, David A. Wagner wrote: > >> I still don't understand this monopoly theory, and especially not how >> quote you posted about "exploiting a monopoly in one market to expand >> into other markets, or to enhance a monopoly in a second market" might >> apply here. >> >> Who's the monopolist here? Not any one movie studio; they've got plenty >> of competition. Not the MPAA; it's not selling anything. Not the player >> manufacturers; they've got tons of competitors, too. > >The first thing to note is tht the anti-trust acts prohibit "combinations >in restraint of trade", not monopolies per se. > >Second, the members of the MPAA (individually) and the members of the >DVDCCA (collectively) have entered into an agreement, requiring that >certain conditions be met in order to make particular products. Since the >IP is not in these products, but in a different market (movies) Kodak >tells us why they cannot use that monopoly to restrain trade in another >market. > >In short, the MPAA got together with the DVDCCA to agree to limit the >range of products offered to consumers, and to prevent anyone not in their >club from making a competing product. I think that's clear anti-trust law >violation. Or just think of them as the Motion Picture Cartel (MPC). However, they have much more control then more commonly known cartels such as OPEC. -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Wed Jul 26 23:46:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA13751 for dvd-discuss-outgoing; Wed, 26 Jul 2000 23:46:42 -0400 Received: from dial149.roadrunner.com (dial149.cybermesa.com [209.12.75.149] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA13748 for ; Wed, 26 Jul 2000 23:46:39 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id VAA03658 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 21:47:13 -0600 Date: Wed, 26 Jul 2000 21:47:11 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.42: file-size limitations Message-ID: <20000726214711.A3520@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 Day 1, p.42, Shamos: 15 The first time we did it, it wasn't complete because 16 the complete VOB file, I believe, is 4.3 gigabytes and we 17 couldn't get the system to create a file larger than four 18 gigabits. But we had a perfectly playable file and we played 19 it and it was the equivalent to the DVD of the movie Sleepless 20 in Seattle. Gigabits -> gigabytes. I'm not sure I understand the answer. If the file is truncated, then it certainly isn't equivalent; it plays only to the point of truncation. If Shamos dumped stuff into several files, and hence got all the data onto a hard disk, "equivalent" is still debatable because he's lost menus etc. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 00:08:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA15646 for dvd-discuss-outgoing; Thu, 27 Jul 2000 00:08:37 -0400 Received: from dial170.roadrunner.com (dial170.cybermesa.com [209.12.75.170] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA15643 for ; Thu, 27 Jul 2000 00:08:34 -0400 Received: (from paul@localhost) by dial170.roadrunner.com (8.8.7/8.8.7) id WAA03859 for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 22:09:03 -0600 Date: Wed, 26 Jul 2000 22:09:02 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Napster restrained Message-ID: <20000726220901.A3817@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 From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 00:35:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA16348 for dvd-discuss-outgoing; Thu, 27 Jul 2000 00:35:00 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA16345 for ; Thu, 27 Jul 2000 00:34:58 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id XAA29552 for ; Wed, 26 Jul 2000 23:34:06 -0500 Message-ID: <397FB652.AB3728D4@mninter.net> Date: Wed, 26 Jul 2000 23:10:58 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented References: <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman wrote: > If they could show that Kaplan actually advised them on > setting up this scheme, then he would have to be taken > off the case. The recusal motion was merely because > of his previous work for TW ... but since it could not > be shown that the work he did pertained to this case > he did not step down. > > Do you know something we don't? Alas, I do not. That's why I said I would put money on it rather than that I would testify to it. Perhaps if we had until December, we could have fleshed this out... Obviously there is too little evidence (that we are aware of) available to prove anything. Seems to me, though, that my statements are enough to demonstrate that I question his impartiality. I've read and reread ihs denial of the recusal motion, and my untrained eye sees him denying the motion as the matters his firm advised TW on were not relevant to the case. He can do this because the firm advised TW on anti-trust issues specifically related to DVDs, as I have been leaning on, but he has ruled anti-trust as irrelevant a priori. I believe that the statute identifies a reasonable person in posession of all the facts who questions the judge's impartiality. Well, I question his impartiality--but all the facts are not in. So I would think that the judge, if he feels that he should not recuse himself, needed to do a better job elucidating the facts to allay my questions. He should have shed more light on the matter, not brushed it aside. What do we do if all the facts are not in? It sounds like a job for the appeals court. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 00:53:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18461 for dvd-discuss-outgoing; Thu, 27 Jul 2000 00:53:51 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18458 for ; Thu, 27 Jul 2000 00:53:49 -0400 Received: from ppp.anonymizer.com (c07-099.015.popsite.net [64.24.78.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id VAA15817; Wed, 26 Jul 2000 21:55:22 -0700 (PDT) Message-Id: <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 26 Jul 2000 21:54:22 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: [dvd-discuss] Facts and Appeals In-Reply-To: <397FB652.AB3728D4@mninter.net> References: <5A8391CA2D9ED311AFAA080009D982B10B1D46@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 11:10 PM 7/26/2000 -0500, Chris Moseng wrote: >What do we do if all the facts are not in? It sounds like a job for the >appeals court. Appellate Law 101, class is now in session. ;-) The appellate courts do *not* entertain new facts. Period. End of discussion. [1] They consider the facts which are in the trial record, and they consider whether the trial court improperly excluded facts which were offered, but that's it. [2] On the other hand, they are not in the slightest bound by Kaplan's application of the law to the facts as adduced at trial, whatever that application will be. If the smoking gun fact exists in the real world, but was not offered at trial, it does not exist in the appellate court world. The appellate court reviews what happened in trial, it does not retry the case itself. [1] There are some very limited exceptions, but if I were to list them all, you'd accuse me of sounding like a god-damned lawyer, and I'd have to plead guilty. ;-) [2] Whether Kaplan abused his discretion by accelerating the trial so much, thus taking away time in which the defense could have developed more facts, is a different issue. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 01:19:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA20848 for dvd-discuss-outgoing; Thu, 27 Jul 2000 01:19:54 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA20844 for ; Thu, 27 Jul 2000 01:19:52 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id AAA32689 for ; Thu, 27 Jul 2000 00:19:02 -0500 Message-ID: <397FC0BA.38837DCF@mninter.net> Date: Wed, 26 Jul 2000 23:55:22 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Facts and Appeals References: <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> 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 "James S. Tyre" wrote: > Appellate Law 101, class is now in session. ;-) > > The appellate courts do *not* entertain new facts. Period. End of > discussion. [1] Fair enough, but speaking from my inexperienced shoes, they can send the parties back to find more facts, or send the case to be heard by another judge, right? That's really what I was driving at. Anyway, I don't know where the burden of discovery of facts about the judge's relation to TW lay. As I stated, I think that the recusal motion and affadavit put things in Kaplan's lap. He had the option to present new facts to convince me that he is impartial, but instead he argued it was irrelevant. It seems weaker to me. Always learning, -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 01:38:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21649 for dvd-discuss-outgoing; Thu, 27 Jul 2000 01:38:33 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA21646 for ; Thu, 27 Jul 2000 01:38:31 -0400 Received: from ppp.anonymizer.com (c07-099.015.popsite.net [64.24.78.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id WAA23068 for ; Wed, 26 Jul 2000 22:40:09 -0700 (PDT) Message-Id: <4.3.2.7.2.20000726222655.00ab2150@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 26 Jul 2000 22:39:05 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Facts and Appeals In-Reply-To: <397FC0BA.38837DCF@mninter.net> References: <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> 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 11:55 PM 7/26/2000 -0500, Chris Moseng wrote: >"James S. Tyre" wrote: > > > Appellate Law 101, class is now in session. ;-) > > > > The appellate courts do *not* entertain new facts. Period. End of > > discussion. [1] > >Fair enough, but speaking from my inexperienced shoes, they can send the >parties back to find more facts, or send the case to be heard by another >judge, right? Good and tough questions. I think it unlikely (but not impossible) that the Second Circuit would decide, on the facts in the record, to disqualify Kaplan and send the case to a new judge, It is less unlikely that they would say that more evidence is needed, and that Kaplan should allow it. Appellate courts are very sensitive to disqualification issues, of both counsel and judges, so they might bend over backwards there, more than they would with the substantive merits of the case. Even though, in almost all things, a lot more leeway is allowed in bench trials than in jury trials, this is one situation where the converse is true, since the judge has more power over the outcome when he is both the trier of fact and determiner of law. >That's really what I was driving at. > >Anyway, I don't know where the burden of discovery of facts about the >judge's relation to TW lay. As I stated, I think that the recusal motion >and affadavit put things in Kaplan's lap. He had the option to present >new facts to convince me that he is impartial, but instead he argued it >was irrelevant. It seems weaker to me. It was a less than satisfying response from him, but I'm not sure if it was too weak to pass muster. Many things I do know, but precisely what it takes to get a federal judge disqualified is not a specific expertise of mine. >Always learning, As are we all. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 01:48:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA21801 for dvd-discuss-outgoing; Thu, 27 Jul 2000 01:48:12 -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 BAA21798 for ; Thu, 27 Jul 2000 01:48:10 -0400 Received: from sites.inka.de (puric.inka.de [212.227.14.17]) by mail.inka.de with esmtp id 13HgW9-00089T-00; Thu, 27 Jul 2000 07:47:37 +0200 Received: from localhost by sites.inka.de with local id 13HgWC-0002Kh-00; Thu, 27 Jul 2000 07:47:40 +0200 Date: Thu, 27 Jul 2000 07:47:40 +0200 From: Sham Gardner To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Facts and Appeals Message-ID: <20000727074740.A8924@inka.de> References: <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> <397FB652.AB3728D4@mninter.net> <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii User-Agent: Mutt/1.0i In-Reply-To: <4.3.2.7.2.20000726214543.04a94970@127.0.0.1>; from j.s.tyre@cyberpass.net on Wed, Jul 26, 2000 at 09:54:22PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 09:54:22PM -0700, James S. Tyre wrote: > The appellate courts do *not* entertain new facts. Period. End of > discussion. [1] > > They consider the facts which are in the trial record, and they consider > whether the trial court improperly excluded facts which were offered, So it may be possible to bring up Kaplan's exclusion of antitrust and authorisation issues? Sham -- Constantly updated links to coverage of the New York case commencing on July 17th 2000: http://sites.inka.de/risctaker/DeCSS/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 02:07:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA22745 for dvd-discuss-outgoing; Thu, 27 Jul 2000 02:07:05 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA22742 for ; Thu, 27 Jul 2000 02:07:04 -0400 Received: from ppp.anonymizer.com (c07-099.015.popsite.net [64.24.78.99]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id XAA27515 for ; Wed, 26 Jul 2000 23:08:44 -0700 (PDT) Message-Id: <4.3.2.7.2.20000726230154.00b38e80@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Wed, 26 Jul 2000 23:07:42 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Facts and Appeals In-Reply-To: <20000727074740.A8924@inka.de> References: <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> <5A8391CA2D9ED311AFAA080009D982B10B1D46@mail2.onetouch.com> <397FB652.AB3728D4@mninter.net> <4.3.2.7.2.20000726214543.04a94970@127.0.0.1> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:47 AM 7/27/2000 +0200, Sham Gardner wrote: >On Wed, Jul 26, 2000 at 09:54:22PM -0700, James S. Tyre wrote: > > The appellate courts do *not* entertain new facts. Period. End of > > discussion. [1] > > > > They consider the facts which are in the trial record, and they consider > > whether the trial court improperly excluded facts which were offered, > >So it may be possible to bring up Kaplan's exclusion of antitrust and >authorisation issues? Yes. They were excluded because he found them to be legally irrelevant. It can be argued to the appeals court that they were legally relevant. If the appeals court agrees, it then must decide whether the error (along with any others it may find) was harmless or reversible. (If all trial court errors were reversible, no trial result would ever stand on appeal, since there always is something that can be second-guessed.) If there was reversible error, then it goes back to Kaplan (subject to whatever may happen with recusal issues) for a new trial. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 02:24:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA23550 for dvd-discuss-outgoing; Thu, 27 Jul 2000 02:24:28 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA23546 for ; Thu, 27 Jul 2000 02:24:27 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYC00A19F0SM1@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 23:22:05 -0700 (PDT) Date: Wed, 26 Jul 2000 23:42:32 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk In-reply-to: <8lo4c8$s52$1@blowfish.isaac.cs.berkeley.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYC00A1GF0TM1@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David Wagner wrote: > [...] By the way, on many computers, if you don't have enough physical memory > (or if you switch tasks to another application while the DVD player is > running, and that other application uses a fair amount of memory), I'd > imagine that the unencrypted content could easily be swapped or paged > out to hard disk, unless the software players take extraordinary measures > to prevent this. (I know a little about it, because as a cryptographer, > one has to worry about keys being swapped or paged to disk and staying > there for a while. Every cryptographer I've spoken says it is hard, if > not impossible, to reliably prevent this on most Windows platforms.) Well, Windows does support the concept of "critical sections" where no task scheduling or even interrupt processing can occurr. Is that a sufficient alternative? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 02:24:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA23549 for dvd-discuss-outgoing; Thu, 27 Jul 2000 02:24:28 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA23543 for ; Thu, 27 Jul 2000 02:24:27 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYC00A19F0SM1@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Wed, 26 Jul 2000 23:22:04 -0700 (PDT) Date: Wed, 26 Jul 2000 23:42:32 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Transcript, day 6, p.990, 993: typos? In-reply-to: <20000726135219.A1892@localhost> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYC00A1AF0SM1@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 Oh, dude, if you are going to nitpick about transcription errors go over the Prof. David Touretzky testimony. There are many references to "4 loops". > Day 6, p. 990, DiBona: > > 7 A. For graphical work stations. So, one of our clusters, > 8 already a graphical work station, is used by scientists and > 9 engineers to simulate or visualize data sites so that people > 10 can understand them, what kind of data they're working with. > > On line 9, sites ==> sets? > > Day 6, p. 993, DiBona: > > 13 THE WITNESS: Netcraft is an another market research > 14 site. What they do is they, using a program, sort of pull > 15 different machines on the Internet to see what they are > 16 running, and they put together a report based on that, and > 17 from this point they can tell if they're running Windows or > 18 Linux or whatever. > > On line 14, pull ==> poll? > -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 02:55:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA24121 for dvd-discuss-outgoing; Thu, 27 Jul 2000 02:55:23 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA24118 for ; Thu, 27 Jul 2000 02:55:22 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id CAA17982; Thu, 27 Jul 2000 02:54:49 -0400 (EDT) Message-ID: <397FDD0C.18B0E3A4@mit.edu> Date: Thu, 27 Jul 2000 02:56:12 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and copying to disk References: <0FYC00A1GF0TM1@mta5.snfc21.pbi.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 Paul Hsieh wrote: > > David Wagner wrote: > > [...] By the way, on many computers, if you don't have enough physical memory > > (or if you switch tasks to another application while the DVD player is > > running, and that other application uses a fair amount of memory), I'd > > imagine that the unencrypted content could easily be swapped or paged > > out to hard disk, unless the software players take extraordinary measures > > to prevent this. (I know a little about it, because as a cryptographer, > > one has to worry about keys being swapped or paged to disk and staying > > there for a while. Every cryptographer I've spoken says it is hard, if > > not impossible, to reliably prevent this on most Windows platforms.) > > Well, Windows does support the concept of "critical sections" where no task > scheduling or even interrupt processing can occurr. Is that a sufficient alternative? > The DVD player would have to be in a "critical section" whenever descrambled content was available, i.e. whenever the movie was playing. This means no background processing, no easy way to switch between watching a movie and doing something else, no paging (I think, though I don't know enough about how Windows does this), and lots of other things that I'm probably forgetting. Generally, you want to avoid being in critical sections as much as possible, since they become bottlenecks. Even if you could "secure" the movie while playing it in a critical section, the resulting software player would be a usability disaster. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 04:56:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA25492 for dvd-discuss-outgoing; Thu, 27 Jul 2000 04:56:52 -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 EAA25489 for ; Thu, 27 Jul 2000 04:56:50 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6R8uGe18987 for ; Thu, 27 Jul 2000 11:56:16 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 27 Jul 2000 11:56:15 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented In-Reply-To: <397F08C1.CDA4B75E@mninter.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 Wed, 26 Jul 2000, Chris Moseng wrote: >> It's apparently a common misperception that CSS is not patented. >> Parts of CSS are patented. See >> http://www.patents.ibm.com/details?pn=US06021199__, >> http://www.patents.ibm.com/details?pn=US05915018_, and >> related patents. > >Which begs the question, why isn't the patent holder suing for patent >infringement? Because it would certify anticompetitive tying. Another reason: CSS and DeCSS might not both be covered. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 04:59:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA25594 for dvd-discuss-outgoing; Thu, 27 Jul 2000 04:59:42 -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 EAA25591 for ; Thu, 27 Jul 2000 04:59:40 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6R8x7119477 for ; Thu, 27 Jul 2000 11:59:07 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 27 Jul 2000 11:59:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy In-Reply-To: <42.8b199be.26b0742e@cs.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 Jul 2000 Consilgere@cs.com wrote: >If the government already acknowldges its armament status, is precedent >really necessary? You really shouldn't confuse the technical definition of munitions and arms. After all, you cannot claim constitutional protection when caught with a can of VX or a better version of a Cray T3E. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 10:16:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA01349 for dvd-discuss-outgoing; Thu, 27 Jul 2000 10:16:47 -0400 Received: from dial198.roadrunner.com (dial198.cybermesa.com [209.12.75.198] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA01345 for ; Thu, 27 Jul 2000 10:16:42 -0400 Received: (from paul@localhost) by dial198.roadrunner.com (8.8.7/8.8.7) id IAA00770 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 08:17:00 -0600 Date: Thu, 27 Jul 2000 08:16:59 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.990, 993: typos? Message-ID: <20000727081658.A617@localhost> References: <20000726135219.A1892@localhost> <0FYC00A1AF0SM1@mta5.snfc21.pbi.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <0FYC00A1AF0SM1@mta5.snfc21.pbi.net>; from qed@pobox.com on Wed, Jul 26, 2000 at 11:42:32PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 11:42:32PM -0700, Paul Hsieh wrote: > Oh, dude, if you are going to nitpick about transcription errors go over > the Prof. > David Touretzky testimony. There are many references to "4 loops". Those are in the queue. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 10:27:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA02173 for dvd-discuss-outgoing; Thu, 27 Jul 2000 10:27:32 -0400 Received: from hotmail.com (f262.law9.hotmail.com [64.4.8.137]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id KAA02170 for ; Thu, 27 Jul 2000 10:27:27 -0400 Received: (qmail 12048 invoked by uid 0); 27 Jul 2000 14:26:32 -0000 Message-ID: <20000727142632.12047.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Thu, 27 Jul 2000 07:26:32 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Date: Thu, 27 Jul 2000 10:26:32 EDT 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'm not sure your conclusion here, but coupled with the "fire in a theater" comment, it looks to me like Kaplan might determine that code is expressive speach, but that it is not protected. In particular, he may argue that the player keys, which taken by themselves, aren't too expressive are not protective speach. I think I read that Kevin Mitnick was convicted of "possessing illegal numbers" in the newspaper some time ago. I remember because it was funny that it described the numbers as illegal rather than the possession (I realize this was the paper's mistake). A waiter that gathers a list of customer credit card numbers and names and posts the list on the web might have difficulty making a free-speach argument, and I dare say Kaplan may be leaning towards that analogy. Does anybody like the idea of a nineth ammendment right to "learn how things work"? I think that the rights to free speach, assembly, and freedom of the press, plus other ideas in the constitution lead to a right to learn, so that any statute that creates permanent prohibitions on free exchange of precise ideas (computer code) or specific numbers would be unconstitutional. >Eric Eldred writes: > > Yes, I noticed this little dialogue at 1085: > > > > THE COURT: Dr. Touretzky, do people in your field of > > 18 endeavor sometimes make bits of hardware, computer hardware? > > 19 THE WITNESS: Yes, they do. > > 20 THE COURT: Are there circumstances in which it might > > 21 be helpful to a computer scientist to make a bit of hardware > > 22 as to which somebody else holds the patent? > > 23 THE WITNESS: Yes, I think so. > > > > So even if the interpretation is hardware only (which > > I agree with) then one might consider certain cases > > of that free speech as well--i.e., the patent monopoly > > is not total and overruling the First Amendment. > >Hmmm... it didn't look to me as if Kaplan had completely bought into >the expressiveness of code at that point, so that looked to me like an >incipient rationale for some sort of balancing argument --- patents >demonstrate that Congress can ban some "useful" forms of research, to >serve progress in a larger way, or something like that. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:09:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05076 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:09:31 -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 LAA05073 for ; Thu, 27 Jul 2000 11:09:29 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 27 Jul 2000 08:09:09 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D4E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p. 25: authorized players, c ircumvention Date: Thu, 27 Jul 2000 08:09:08 -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 the concept of "licensed disc" does make sense, but it exists in the business space, not the technical space. I dare say that the discs being produced by those Hong Kong pirates were not licensed. However, an important fact to remember is that CSS is not -required-, even on licensed discs. Therefore licensing -- and the granting of rights to view -- is not tied to CSS, it is tied to the disc (at first sale) as we have been maintaining. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: daw@cs.berkeley.edu [mailto:daw@cs.berkeley.edu] > Sent: Wednesday, July 26, 2000 6:23 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: > authorized players, > circumvention > > > Paul Fenimore wrote: > > Day 1, page 25: > > > > 9 Q. And what kind of disks will authorized players play? > > > > 10 A. Well, to my knowledge authorized players play compliant > > 11 disks. > > > > 12 Q. Should they play other disks? > > > > 13 A. I believe it's a requirement, a licensing > requirement that > > 14 they be constructed to not play unlicensed disks. > > > > Hunh? Regardless of what the license says, the "design" of > the CSS system > > simply doesn't permit what Shamos says on lines 13,14 is > required by > > the license. > > Good observation! > > I can't imagine what the witness meant by an "unlicensed > disk". It's not > even clear to me that there is any way to construe it as a meaningful > concept. Disks aren't licensed; players are. What could the witness > possibly have meant? > > But, in any case, I don't think it matters. It seems to me > that, even if > disks are licensed, DeCSS doesn't circumvent them unless all > DVD players do. > > Any disk that is not encrypted with CSS is playable by most > DVD players, > right? So, even if there is some sensible definition of a > "licensed disk", > this fact makes it clear that CSS -- and thus DeCSS -- is > irrelevant to the > issue. In other words, this "unlicensed disk" business is not just a > failure on our part to understand their authority model; the > very concept > is absurd on its face. > > If DeCSS doesn't circumvent, 1201(a) is not implicated. If DeCSS does > circumvent the licensing conditions on disks, then all > current DVD players > do, too, and all DVD players must be banned if DeCSS is. > > I hope Kaplan notices that the "licensed disk" theory of > circumvention is > nonsensical. If DeCSS circumvents, it circumvents the > playing process, not > some hypothetical disk licensing regime. > > This looks like a flat-out mis-statement from a witness who > doesn't really > understand the DVD authority structure. (No big surprise there; did > _anyone_ claim to be able to articulate it clearly?) > > If the plaintiffs can't produce even a vaguely-credible > authority structure, > it would seem to bolster the case that DeCSS doesn't even > circumvent anything, > not even the playing process; if there's no authority > structure, there's no > 1201(a)-circumvention. You can't just make one up after the > fact, as you go > along. > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:23:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05386 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:23:03 -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 LAA05383 for ; Thu, 27 Jul 2000 11:22:56 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 27 Jul 2000 08:22:40 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D4F@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: RE: [dvd-discuss] Source code versus Object Code (executable) Date: Thu, 27 Jul 2000 08:22:39 -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 Eldred [mailto:eldred@eldritchpress.org] > Sent: Wednesday, July 26, 2000 4:15 PM > To: dvd-discuss@eon.law.harvard.edu > Cc: junger@samsara.law.cwru.edu; Gino J. Scarselli; Lee Tien; > Cindy Cohn > Subject: Re: [dvd-discuss] Source code versus Object Code (executable) > > > On Wed, Jul 26, 2000 at 03:46:47PM -0700, Richard Hartman wrote: > >... > > Does the DMCA specify anywhere just what may or may > > not be considered a TPM? If specifically recognizes > > software in the role of a TPM, then there may be a > > conflict if software is recognized as speech. However, > > if this specific recognition is not part of the DMCA then > > in order to avoid conflict it must be interpreted such > > that TPMs may only be hardware. That is to say, if you > > have -circuitry- that scrambles bits, it would be a TPM > > but -software- that scrambles bits would not qualify. > > Yes, I noticed this little dialogue at 1085: > > THE COURT: Dr. Touretzky, do people in your field of > 18 endeavor sometimes make bits of hardware, computer hardware? > 19 THE WITNESS: Yes, they do. > 20 THE COURT: Are there circumstances in which it might > 21 be helpful to a computer scientist to make a bit of hardware > 22 as to which somebody else holds the patent? > 23 THE WITNESS: Yes, I think so. > > So even if the interpretation is hardware only (which > I agree with) then one might consider certain cases > of that free speech as well--i.e., the patent monopoly > is not total and overruling the First Amendment. > > Because as the court and Dr Touretzky seem to have > concluded is that not only is there not much practical > difference between natural language and subject code > and object code, but insofar as the underlying > hardware represents something of the same sort it too > might be considered creative expression. > > I do think the framers of the DMCA had in mind > something far from a computer scientist's reverse > engineering code or building a box to test some > computer science theory. They did put in "for > commerical or personal financial gain"--for some > reason. > > When you get right down to it, -any- invention could be viewed as a "creative expression" ... but I don't think that the courts would then take that to mean that all inventions are protected by first amendment rights. I personally feel that the free speech protection has been applied to code by the courts due to a fundamental misunderstanding of the nature of computers. However, it has been applied and we should by all means try to continue to defend the results of this misunderstanding. Touretzky did a good job of stretching the free speech umbrella from source code to cover object code as well. Wonderfully argued. I do not think, though, that you could then get the courts to buy extending it the next step to cover hardware that does the same job as software. To the courts, if it's hardware it's an invention, a material object. Software is something nebulous to them, so it became "speech" and got protected. But hardware is physical. Unless you could start comparing it to sculpture (protected as artistic expression) I don't think you'd get anyware trying to class a hardware TPM as speech just so that you could create the conflict between circumventing a TPM under 1201 vs. free speech. -- -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 Jul 27 11:23:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05528 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:23:50 -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 LAA05525 for ; Thu, 27 Jul 2000 11:23:48 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6RFNEQ02485 for ; Thu, 27 Jul 2000 18:23:15 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 27 Jul 2000 18:23:14 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-Reply-To: Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, 26 Jul 2000, Ole Craig wrote: > > Someone who claims programming experience solely on the basis >of VB doth not a programmer make. > Since everybody knows debugging banking information systems from ~128MB coredumps, with a hex editor, under a tight deadline, for fun only, is what tells Real Programmers from Script Kiddies? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:28:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05676 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:28:04 -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 LAA05673 for ; Thu, 27 Jul 2000 11:28:01 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 27 Jul 2000 08:27:42 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D50@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: RE: [dvd-discuss] Source code versus Object Code (executable) Date: Thu, 27 Jul 2000 08:27:42 -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, July 26, 2000 7:02 PM > To: dvd-discuss@eon.law.harvard.edu > Cc: junger@samsara.law.cwru.edu; Gino J. Scarselli; Lee Tien; > Cindy Cohn > Subject: Re: [dvd-discuss] Source code versus Object Code (executable) > > > Eric Eldred writes: > > Yes, I noticed this little dialogue at 1085: > > > > THE COURT: Dr. Touretzky, do people in your field of > > 18 endeavor sometimes make bits of hardware, computer hardware? > > 19 THE WITNESS: Yes, they do. > > 20 THE COURT: Are there circumstances in > which it might > > 21 be helpful to a computer scientist to make a bit of hardware > > 22 as to which somebody else holds the patent? > > 23 THE WITNESS: Yes, I think so. > > > > So even if the interpretation is hardware only (which > > I agree with) then one might consider certain cases > > of that free speech as well--i.e., the patent monopoly > > is not total and overruling the First Amendment. > > Hmmm... it didn't look to me as if Kaplan had completely bought into > the expressiveness of code at that point, so that looked to me like an > incipient rationale for some sort of balancing argument --- patents > demonstrate that Congress can ban some "useful" forms of research, to > serve progress in a larger way, or something like that. > > (BTW, technically even the distinction between software and hardware > is starting to erode --- a lot of hardware design is tried, and some > even shipped, as "programmable logic devices", which are completely > generic silicon packages into which a wiring diagram is loaded in > order to configure them for a particular purpose. The description of > the wiring diagram is rarely thought of as a set of instructions, > but it's difficult to draw a hard and fast line). >From the technical perspective, to people with in depth knowledge of the field, you may be correct. But from the courts' perspective, with technical expertise ranging from zero all the way up to "a little bit", I think that the line would be very clear. Heck, they had a similar line between source code and object code until Touretzky's presentation. -- -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 Jul 27 11:32:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA05880 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:32:54 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA05877 for ; Thu, 27 Jul 2000 11:32:50 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.44.5d4da1c (3852) for ; Thu, 27 Jul 2000 11:31:44 -0400 (EDT) Message-ID: <44.5d4da1c.26b1afdf@cs.com> Date: Thu, 27 Jul 2000 11:31:43 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ok, point taken. But I honestly think the First Amendment arguments are being beaten to death by the computer community. Information nowadays is nothing like information back in Hamilton or Jefferson's time. It needs a different set of standards, because it exists in a different medium. One where information has "physical" (I use the term loosely) reprecussions. You could never say that back in the 1700's. What we need is a complete Constitutional overhaul to deal with this, not to rely on the same rules over and over again that were never intended to protect anything like this. At least with a 2nd Amendment argument, we acknowledge that yes, the programs we write have these quasi-physical reprecussions that previous forms of information could never have. If we keep arguing First Amendment, we deny all that and no one takes us seriously because of it. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:38:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06194 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:38:52 -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 LAA06191 for ; Thu, 27 Jul 2000 11:38:51 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Thu, 27 Jul 2000 08:38:35 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D51@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Facts and Appeals Date: Thu, 27 Jul 2000 08:38:34 -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 There were facts offered in testimony that he cut short because he believed them to be irrelevant. Now, if this were the "finding of fact" portion of the trial I do not understand how he could find anything irrelevant because that would (to my mind) be part of the "finding of law" step. Or were the two steps smushed together here? Anyway -- facts were offered into evidence that were not accepted and that, as you said, is fair game for the appelate courts. -- -Richard M. Hartman hartman@onetouch.com 186,000 mi./sec ... not just a good idea, it's the LAW! > -----Original Message----- > From: James S. Tyre [mailto:j.s.tyre@cyberpass.net] > Sent: Wednesday, July 26, 2000 9:54 PM > To: dvd-discuss@eon.law.harvard.edu; dvd-discuss@eon.law.harvard.edu > Subject: [dvd-discuss] Facts and Appeals > > > At 11:10 PM 7/26/2000 -0500, Chris Moseng wrote: > > > >What do we do if all the facts are not in? It sounds like a > job for the > >appeals court. > > > Appellate Law 101, class is now in session. ;-) > > The appellate courts do *not* entertain new facts. Period. End of > discussion. [1] > > They consider the facts which are in the trial record, and > they consider > whether the trial court improperly excluded facts which were > offered, but > that's it. [2] On the other hand, they are not in the > slightest bound by > Kaplan's application of the law to the facts as adduced at > trial, whatever > that application will be. > > If the smoking gun fact exists in the real world, but was not > offered at > trial, it does not exist in the appellate court world. The > appellate court > reviews what happened in trial, it does not retry the case itself. > > [1] There are some very limited exceptions, but if I were to > list them all, > you'd accuse me of sounding like a god-damned lawyer, and I'd > have to plead > guilty. ;-) > > [2] Whether Kaplan abused his discretion by accelerating the > trial so much, > thus taking away time in which the defense could have > developed more facts, > is a different issue. > > -------------------------------------------------------------------- > James S. Tyre mailto:j.s.tyre@cyberpass.net > Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) > 540 South Marengo Avenue Pasadena, California 91101 > Co-founder, The Censorware Project http://censorware.org > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:39:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06257 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:39:56 -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 LAA06252 for ; Thu, 27 Jul 2000 11:39:54 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6RFdLS03577 for ; Thu, 27 Jul 2000 18:39:21 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Thu, 27 Jul 2000 18:39:21 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] CSS patented In-Reply-To: <3980591F.F47E649A@easybase.com> Message-ID: MIME-Version: 1.0 Content-Type: TEXT/PLAIN; charset=US-ASCII Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 27 Jul 2000, Moshe Vainer wrote: >Another question would be do they have patent on CSS in Norway, or is it >only a US Patent. >And if it's only a US Patent does that restrict only the use of DeCSS in US >or the distribution of it? That doesn't mean a whole lot, since importing something which would break a domestic patent if manufactured in the country, is covered in patent law as well. Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 11:59:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA08375 for dvd-discuss-outgoing; Thu, 27 Jul 2000 11:59:16 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA08291 for ; Thu, 27 Jul 2000 11:59:11 -0400 Received: by aero.org id <17090-6>; Thu, 27 Jul 2000 08:58:26 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJIAa09968; Thu Jul 27 08:58:08 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 08:57:38 -0700 Subject: Re: [dvd-discuss] Facts and Appeals To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 08:57:37 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 08:58:17 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu No they can't send out for more facts. The appellate court can only afirm or overturn a verdict based upon the record presented to it. Chris Moseng @eon.law.harvard.edu on 07/26/2000 10:20:27 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Facts and Appeals "James S. Tyre" wrote: > Appellate Law 101, class is now in session. ;-) > > The appellate courts do *not* entertain new facts. Period. End of > discussion. [1] Fair enough, but speaking from my inexperienced shoes, they can send the parties back to find more facts, or send the case to be heard by another judge, right? That's really what I was driving at. Anyway, I don't know where the burden of discovery of facts about the judge's relation to TW lay. As I stated, I think that the recusal motion and affadavit put things in Kaplan's lap. He had the option to present new facts to convince me that he is impartial, but instead he argued it was irrelevant. It seems weaker to me. Always learning, -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:05:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA09394 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:05:25 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA09391 for ; Thu, 27 Jul 2000 12:05:22 -0400 Received: by aero.org id <17141-3>; Thu, 27 Jul 2000 09:04:34 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdXJAa09968; Thu Jul 27 09:04:25 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 09:04:07 -0700 Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and copying todisk To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 09:04:04 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 09:04:29 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can't speak for Windows98 or 2000 but the advice I got from microsoft on attempting something like that in Windows95 was "you'd have to write a virtual device driver [i.e., microsoft speak for assembly language]....I don't recommend you try that". Paul Hsieh @eon.law.harvard.edu on 07/26/2000 11:24:47 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and copying to disk David Wagner wrote: > [...] By the way, on many computers, if you don't have enough physical memory > (or if you switch tasks to another application while the DVD player is > running, and that other application uses a fair amount of memory), I'd > imagine that the unencrypted content could easily be swapped or paged > out to hard disk, unless the software players take extraordinary measures > to prevent this. (I know a little about it, because as a cryptographer, > one has to worry about keys being swapped or paged to disk and staying > there for a while. Every cryptographer I've spoken says it is hard, if > not impossible, to reliably prevent this on most Windows platforms.) Well, Windows does support the concept of "critical sections" where no task scheduling or even interrupt processing can occurr. Is that a sufficient alternative? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:11:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA09855 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:11:35 -0400 Received: from dial171.roadrunner.com (sf-du171.cybermesa.com [209.12.75.171]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA09852 for ; Thu, 27 Jul 2000 12:11:32 -0400 Received: (from paul@localhost) by dial171.roadrunner.com (8.8.7/8.8.7) id KAA01138 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 10:12:00 -0600 Date: Thu, 27 Jul 2000 10:11:58 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, c ircumvention Message-ID: <20000727101158.A993@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D4E@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D4E@mail2.onetouch.com>; from hartman@onetouch.com on Thu, Jul 27, 2000 at 08:09:08AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 08:09:08AM -0700, Richard Hartman wrote: > Actually the concept of "licensed disc" does make sense, > but it exists in the business space, not the technical > space. > > I dare say that the discs being produced by those > Hong Kong pirates were not licensed. > > However, an important fact to remember is that CSS is > not -required-, even on licensed discs. Therefore > licensing -- and the granting of rights to view -- is > not tied to CSS, it is tied to the disc (at first sale) > as we have been maintaining. My concern is that the witness keeps flopping between "authorized" and "licensed". I can't tell in some cases whether he is talking about authorized or licensed by contract, and outside the scope of copyright and paracopyright, inside the scope of copyright, etc. Unless they are pinned down on this, they will try to extend the statutory protection offered to technological measures to also cover all the non-technological parts of the bundle of contracts, technology, etc. that they collectively refer to as "CSS". Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:21:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA10175 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:21:38 -0400 Received: from dial176.roadrunner.com (sf-du176.cybermesa.com [209.12.75.176]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA10172 for ; Thu, 27 Jul 2000 12:21:35 -0400 Received: (from paul@localhost) by dial176.roadrunner.com (8.8.7/8.8.7) id KAA01279 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 10:22:03 -0600 Date: Thu, 27 Jul 2000 10:22:01 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, c ircumvention Message-ID: <20000727102201.B993@localhost> References: <5A8391CA2D9ED311AFAA080009D982B10B1D4E@mail2.onetouch.com> <20000727101158.A993@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000727101158.A993@localhost>; from fenimore@roadrunner.com on Thu, Jul 27, 2000 at 10:11:58AM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 10:11:58AM -0600, Paul Fenimore wrote: > On Thu, Jul 27, 2000 at 08:09:08AM -0700, Richard Hartman wrote: > > Actually the concept of "licensed disc" does make sense, > > but it exists in the business space, not the technical > > space. > > > > I dare say that the discs being produced by those > > Hong Kong pirates were not licensed. > > > > However, an important fact to remember is that CSS is > > not -required-, even on licensed discs. Therefore > > licensing -- and the granting of rights to view -- is > > not tied to CSS, it is tied to the disc (at first sale) > > as we have been maintaining. > > My concern is that the witness keeps flopping between "authorized" > and "licensed". I can't tell in some cases whether he is talking > about authorized or licensed by contract, and outside the scope of > copyright and paracopyright, inside the scope of copyright, etc. > > Unless they are pinned down on this, they will try to extend the > statutory protection offered to technological measures to also > cover all the non-technological parts of the bundle of contracts, > technology, etc. that they collectively refer to as "CSS". To be more specific -- Shamos also says that writing to disk is something that a licensed player never does. This is blatantly taking statutory protection offered to technological measures, creating a measure (which for other reasons is a pretextual measure), then claiming that the contractual, i.e. non-technological, limitation on player design that prevent writing to a file in some filesystem have something to do with 1201(a). They don't. The limitation is contractual, not technological. It is pure bait-and-switch. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:33:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11303 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:33:17 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11262 for ; Thu, 27 Jul 2000 12:33:08 -0400 Received: by aero.org id <17189-5>; Thu, 27 Jul 2000 09:32:16 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGMAa09968; Thu Jul 27 09:29:50 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 09:13:26 -0700 Subject: Re: [dvd-discuss] Source code versus Object Code (executable) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 09:13:26 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 09:29:53 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu This is one issue that may best be decided by Congress rather than the Courts. If Congress comes out and amends the DMCA to state something to the effect that no copy protection must prevent consumers from making copies for their own personal use OR perform media shifting OR prevent access AFTER the copyright period expires. AND that any copy protection scheme which prevents any of these is not covered under this act and is fair game for anybody that want to crack it.... Recommendations to everybody: Provide comments to the commerce department on DMCA. They are asking for them by 5 August 2000. Reply comments are due 5 September 2000. You can bet that the MPAA, DVDCAA, Time Warner etc will be providiing comments.You can also bet theat They will be trying to plug some of the holes that have come out in this trial in their comments. More importantly, a lot of the discussions here should go into the reply comments by as many people as possible. So..tell your friends, coworkers etc. "Harold Eaton" @eon.law.harvard.edu on 07/27/2000 07:28:36 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Source code versus Object Code (executable) I'm not sure your conclusion here, but coupled with the "fire in a theater" comment, it looks to me like Kaplan might determine that code is expressive speach, but that it is not protected. In particular, he may argue that the player keys, which taken by themselves, aren't too expressive are not protective speach. I think I read that Kevin Mitnick was convicted of "possessing illegal numbers" in the newspaper some time ago. I remember because it was funny that it described the numbers as illegal rather than the possession (I realize this was the paper's mistake). A waiter that gathers a list of customer credit card numbers and names and posts the list on the web might have difficulty making a free-speach argument, and I dare say Kaplan may be leaning towards that analogy. Does anybody like the idea of a nineth ammendment right to "learn how things work"? I think that the rights to free speach, assembly, and freedom of the press, plus other ideas in the constitution lead to a right to learn, so that any statute that creates permanent prohibitions on free exchange of precise ideas (computer code) or specific numbers would be unconstitutional. >Eric Eldred writes: > > Yes, I noticed this little dialogue at 1085: > > > > THE COURT: Dr. Touretzky, do people in your field of > > 18 endeavor sometimes make bits of hardware, computer hardware? > > 19 THE WITNESS: Yes, they do. > > 20 THE COURT: Are there circumstances in which it might > > 21 be helpful to a computer scientist to make a bit of hardware > > 22 as to which somebody else holds the patent? > > 23 THE WITNESS: Yes, I think so. > > > > So even if the interpretation is hardware only (which > > I agree with) then one might consider certain cases > > of that free speech as well--i.e., the patent monopoly > > is not total and overruling the First Amendment. > >Hmmm... it didn't look to me as if Kaplan had completely bought into >the expressiveness of code at that point, so that looked to me like an >incipient rationale for some sort of balancing argument --- patents >demonstrate that Congress can ban some "useful" forms of research, to >serve progress in a larger way, or something like that. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:33:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11401 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:33:55 -0400 Received: from dial209.roadrunner.com (sf-du209.cybermesa.com [209.12.75.209]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11397 for ; Thu, 27 Jul 2000 12:33:52 -0400 Received: (from paul@localhost) by dial209.roadrunner.com (8.8.7/8.8.7) id KAA01420 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 10:34:17 -0600 Date: Thu, 27 Jul 2000 10:34:17 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.48: DeCSS -> files -> DivX Message-ID: <20000727103416.A1331@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 Day 1, p.48, Shamos: 1 So, the result of running DeCSS is it produces a 2 bunch of files that one can select from those that one wants 3 to make a DiVX of. And we chose the as shown by the screen 4 down there, it tells you how to make that selection. 1. The reason other players don't do this is contractual obligation, it has nothing to do with CSS per se. It is the CSS licensing measures that are relevant to copy control. 1201(a) protects technological measures, not contractual measures. 2. No circumvention is required to get data "on to a disk". See David Wagner's recent post. Incidentally, this is the real value of the DOD, DVD Rip examples. NOT that there were several shotguns, but that a descrambler is NOT a shotgun. Writing to disk is a shotgun. Writing to disk is not circumvention. This is a circumvention lawsuit. DOD and DVD Rip hook into an existing CSS descrambler --- yet they exemplify the objectionable part of writing to disk. The objectionable part of DeCSS should by analogy by writing to disk. Yet, the function of DeCSS that the statute purports to regulate is descrambling, not copying. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:36:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11623 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:36:26 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11620 for ; Thu, 27 Jul 2000 12:36:23 -0400 Received: by aero.org id <17118-7>; Thu, 27 Jul 2000 09:35:23 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdQNAa09968; Thu Jul 27 09:35:10 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 09:16:17 -0700 Subject: RE: [dvd-discuss] Source code versus Object Code (executable) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 09:16:16 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 09:35:14 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The aspect of this that has me worried is the desire to patent ALGORITHMS. So are the Supreme Court has been standing firm that algorithms cannot be patented but as hardware and software begin to merge (look at VHDL and Ada) I can see a bunch of people who want get their hands on the common part and lock that up - the algorithms. Richard Hartman @eon.law.harvard.edu on 07/27/2000 08:26:03 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: "'dvd-discuss@eon.law.harvard.edu'" cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: RE: [dvd-discuss] Source code versus Object Code (executable) > -----Original Message----- > From: Eric Eldred [mailto:eldred@eldritchpress.org] > Sent: Wednesday, July 26, 2000 4:15 PM > To: dvd-discuss@eon.law.harvard.edu > Cc: junger@samsara.law.cwru.edu; Gino J. Scarselli; Lee Tien; > Cindy Cohn > Subject: Re: [dvd-discuss] Source code versus Object Code (executable) > > > On Wed, Jul 26, 2000 at 03:46:47PM -0700, Richard Hartman wrote: > >... > > Does the DMCA specify anywhere just what may or may > > not be considered a TPM? If specifically recognizes > > software in the role of a TPM, then there may be a > > conflict if software is recognized as speech. However, > > if this specific recognition is not part of the DMCA then > > in order to avoid conflict it must be interpreted such > > that TPMs may only be hardware. That is to say, if you > > have -circuitry- that scrambles bits, it would be a TPM > > but -software- that scrambles bits would not qualify. > > Yes, I noticed this little dialogue at 1085: > > THE COURT: Dr. Touretzky, do people in your field of > 18 endeavor sometimes make bits of hardware, computer hardware? > 19 THE WITNESS: Yes, they do. > 20 THE COURT: Are there circumstances in which it might > 21 be helpful to a computer scientist to make a bit of hardware > 22 as to which somebody else holds the patent? > 23 THE WITNESS: Yes, I think so. > > So even if the interpretation is hardware only (which > I agree with) then one might consider certain cases > of that free speech as well--i.e., the patent monopoly > is not total and overruling the First Amendment. > > Because as the court and Dr Touretzky seem to have > concluded is that not only is there not much practical > difference between natural language and subject code > and object code, but insofar as the underlying > hardware represents something of the same sort it too > might be considered creative expression. > > I do think the framers of the DMCA had in mind > something far from a computer scientist's reverse > engineering code or building a box to test some > computer science theory. They did put in "for > commerical or personal financial gain"--for some > reason. > > When you get right down to it, -any- invention could be viewed as a "creative expression" ... but I don't think that the courts would then take that to mean that all inventions are protected by first amendment rights. I personally feel that the free speech protection has been applied to code by the courts due to a fundamental misunderstanding of the nature of computers. However, it has been applied and we should by all means try to continue to defend the results of this misunderstanding. Touretzky did a good job of stretching the free speech umbrella from source code to cover object code as well. Wonderfully argued. I do not think, though, that you could then get the courts to buy extending it the next step to cover hardware that does the same job as software. To the courts, if it's hardware it's an invention, a material object. Software is something nebulous to them, so it became "speech" and got protected. But hardware is physical. Unless you could start comparing it to sculpture (protected as artistic expression) I don't think you'd get anyware trying to class a hardware TPM as speech just so that you could create the conflict between circumventing a TPM under 1201 vs. free speech. -- -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 Jul 27 12:40:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA11830 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:40:41 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA11827 for ; Thu, 27 Jul 2000 12:40:31 -0400 Received: by aero.org id <17092-1>; Thu, 27 Jul 2000 09:39:46 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdOPAa09968; Thu Jul 27 09:39:38 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 09:26:05 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 09:26:05 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 09:39:44 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Please elaborate. In what way is information different? Oh sure we talk about different things but Hamilton and Jefferson were not concerned with what information was used in their society but creating a government structure to permit information to be passed. If you think them out of date, you haven't read them. You should read some of Jefferson's writings. Some of his ideas are extremely radical. While he would not know what a computer is, I think he would be pleased with the fact that much of the computer software industry is rather like the "cottage industry" that he favored. Consilgere@cs.com@eon.law.harvard.edu on 07/27/2000 08:35:09 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy Ok, point taken. But I honestly think the First Amendment arguments are being beaten to death by the computer community. Information nowadays is nothing like information back in Hamilton or Jefferson's time. It needs a different set of standards, because it exists in a different medium. One where information has "physical" (I use the term loosely) reprecussions. You could never say that back in the 1700's. What we need is a complete Constitutional overhaul to deal with this, not to rely on the same rules over and over again that were never intended to protect anything like this. At least with a 2nd Amendment argument, we acknowledge that yes, the programs we write have these quasi-physical reprecussions that previous forms of information could never have. If we keep arguing First Amendment, we deny all that and no one takes us seriously because of it. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 12:45:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA12125 for dvd-discuss-outgoing; Thu, 27 Jul 2000 12:45:41 -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 MAA12122 for ; Thu, 27 Jul 2000 12:45:38 -0400 Message-ID: <20000727164431.7584.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Thu, 27 Jul 2000 09:44:31 PDT Date: Thu, 27 Jul 2000 09:44:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause 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: > Both copyrights and patents are traditionally referred to as > monopolies. But it is an abuse of the copyright or patent to use it > to extend the monopoly to cover matters not included in the grant. Support for this: __________________________________ U.S. V. PARAMOUNT PICTURES, INC. 334 U.S. 131 (1948) "We stated in United States v. United States Gypsum Co., supra, at page 401 of 333 U.S., at page 545 of 68 S.Ct., that 'The rewards which flow to the patentee and his licensees from the suppression of competition through the regulation of an industry are not reasonably and normally adapted to secure pecuniary reward for the patentee's monopoly.' The same is true of the rewards of the copyright owners and their licensees in the present case. For here too the licenses are but a part of the general plan to suppress competition. [...] For a copyright may no more be used than a patent to deter competition between rivals in the exploitation of their licenses." "Block-booking prevents competitors from bidding for single features on their individual merits. The District Court held it illegal for that reason and for the reason that it 'adds to the monopoly of a single copyrighted picture that of another copyrighted picture which must be taken and exhibited in order to secure the first.' That enlargement of the monopoly of the copyright was condemned below in reliance on the principle which forbids the owner of a patent to condition its use on the purchase or use of patented or unpatented materials." __________________________________ SONY CORPORATION OF AMERICA v. UNIVERSAL CITY STUDIOS, 464 U.S. 417 (Jan. 17, 1984) "The closest analogy is provided by the patent law cases to which it is appropriate to refer because of the historic kinship between patent law and copyright law. [...] Indeed, a finding of contributory infringement is normally the functional equivalent of holding that the disputed article is within the monopoly granted to the patentee. [...] For that reason, in contributory infringement cases arising under the patent laws the Court has always recognized the critical importance of not allowing the patentee to extend his monopoly beyond the limits of his specific grant. These cases deny the patentee any right to control the distribution of unpatented articles unless they are 'unsuited for any commercial noninfringing use.'" [Note the similarity to 17 U.S.C. 1201(a)(2)(B) in the last sentance. This is the fair use standard! It was resolved favorably in Betamax] __________________________________________________ Do You Yahoo!? Get Yahoo! Mail - Free email you can access from anywhere! http://mail.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 13:02:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA13358 for dvd-discuss-outgoing; Thu, 27 Jul 2000 13:02:50 -0400 Received: from dial157.roadrunner.com (sf-du157.cybermesa.com [209.12.75.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA13355 for ; Thu, 27 Jul 2000 13:02:46 -0400 Received: (from paul@localhost) by dial157.roadrunner.com (8.8.7/8.8.7) id LAA01708 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:03:15 -0600 Date: Thu, 27 Jul 2000 11:03:14 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.52: derivative works Message-ID: <20000727110313.A1432@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 Day 1, p. 52, Shamos: 1 A. The end result was a DiVX'd version of Sleepless in 2 Seattle that was substantially smaller than the original by a 3 factor of I recall something like 5.6. "Di[v]X'd version" is a synonym for "derivative work". Why was it necessary to descramble the work on DVD? Was descrambling necessary so that a derivative version could be made, not because descrambling is necessary to copying? Is CSS a system that prevents making derivatives? Is it a system that prevents making copies? What prevents or hinders someone from making copies after the "play" button is pressed? Macrovision? What's that? Is it part of the CSS data-scrambling algorithm? What was that Mr. Shamos? You said "no"? Then why do you say CSS prevents copying? What? Macrovision is required by contract? Can we see the contract please? Are you aware that 1201(a) offers statutory protection for technological measures, not contractual measures? Are you aware that DeCSS has nothing to do with Macrovision? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 13:07:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA13755 for dvd-discuss-outgoing; Thu, 27 Jul 2000 13:07:47 -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 NAA13751 for ; Thu, 27 Jul 2000 13:07:44 -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 NAA00956; Thu, 27 Jul 2000 13:07:07 -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 NAA19269; Thu, 27 Jul 2000 13:04:42 -0400 (EDT) Mime-Version: 1.0 Message-Id: In-Reply-To: <200007270040.UAA05190@samsara.law.cwru.edu> References: <200007270040.UAA05190@samsara.law.cwru.edu> Date: Thu, 27 Jul 2000 13:04:32 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Cc: junger@samsara.law.cwru.edu 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 8:40 PM -0400 7/26/2000, Peter D. Junger wrote: >"Arnold G. Reinhold" writes: > >: This case is being brought under DMCA. Once you conclude that >: computer code is speech, then the only way plaintiffs can prevail is >: if DMCA imposes some new, constitutionally permissible, restriction >: on free speech. But Congress expressly disavowed any such intention. >: DCMA states in 1201d(4): "Nothing in this section shall enlarge or >: diminish any rights of free speech or the press for activities using >: consumer electronics, telecommunications, or computing products." So >: there is no need to ask about standards of First Amendment scrutiny >: because Congress steered clear of freedom of speech issues within the >: law itself. >: >: Am I missing something? > >Nothing but the Judge's reference to O'Brien. I, of course, think that >you are right, but I really get the sense that lots of judges and >law professors are convinced that there should be an additional category >of relatively unprotected speech like speech that endangers national >security, commercial speech, and pornography, viz., speech by programmers. The judge was thinking out load, I suspect. It is one of his endearing behaviors. I think he concluded long ago that DeCSS is a threat to the movie industry and that DMCA is is a legitimate act of Congress designed to give them relief in this kind of situation. He is very reluctant to say "too bad, but the Federal courts can't help you." > >Kaplan seems to be able to understand what programming is about, so >he may not exhibit that prejudice. But I fear that there are lots of >lawyers who are frightened by the magical powers that seem to be inherent >in programs. At least I know of no movement to burn programmers at the >stake, so far. > I don't expect burnt programmers, they're too valuable, but I can envision a future where programmers are licensed, access to development tolls is restricted to authorized settings and computers available to the general public must be designed so they only execute code that is signed by some authority. I think the MPAA would like that model. If you think this is far fetched, talk to someone in your chemistry department. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 13:28:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA14982 for dvd-discuss-outgoing; Thu, 27 Jul 2000 13:28:05 -0400 Received: from dial208.roadrunner.com (sf-du208.cybermesa.com [209.12.75.208]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA14979 for ; Thu, 27 Jul 2000 13:28:01 -0400 Received: (from paul@localhost) by dial208.roadrunner.com (8.8.7/8.8.7) id LAA01876 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:28:24 -0600 Date: Thu, 27 Jul 2000 11:28:23 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.52: computations Message-ID: <20000727112822.A1727@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 Day 1, p. 52, Shamos: 13 THE WITNESS: Yes, I'll make it -- I will be very 14 specific with the numbers. The video object file, the .VOB 15 file that we obtained by DeCSS Sleepless in Seattle was 4.3 16 gigabytes. After we completed the DiVX process, it was down 17 to 750 megabytes. How big is a VCD? 18 Q. That's a ratio of about 5.67? That should be two digits, not three. He's suggesting 17 / 3 compression as I see it. 19 A. Yes. 20 Q. Now, have you -- 21 THE COURT: How much of that compression was 22 attributable to the elimination of the trailer? 23 THE WITNESS: I think the trailer lasts something 24 like three minutes and the movie lasts close to two hours. 25 It's just a tiny -- tiny percentage. 3 minutes / 120 minutes = 1/40 ==> 2.5%, assuming that data rates are unchanged. But Shamos just told us that the frame-rate changes, on line 12 of page 50: p. 50 11 movie because the opening trailer is recorded at a different 12 frame rate than the movie itself and the process assumes that 13 either one or the other of those speeds is going to be used So the data-rate will almost certainly be different. Is it higher or lower for a trailer? Do the advertizements get extra data so that they look good? p. 53 1 Q. And have you and your assistant been able to obtain DiVX 2 copies of DeCSS films in the size of around 650 megabytes? 3 A. Yes, we have by playing with the compression ratio, if you 4 increase the compression ratio higher than 5.67, then you can How much time did this take? More or less than the 10 to 20 hours required for 17/3 compression ratio? Roughly the same? What compression ratio did you, I mean your assistant, use? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 13:50:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA16654 for dvd-discuss-outgoing; Thu, 27 Jul 2000 13:50:46 -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 NAA16620 for ; Thu, 27 Jul 2000 13:50:41 -0400 Message-ID: <20000727174939.17584.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 27 Jul 2000 10:49:39 PDT Date: Thu, 27 Jul 2000 10:49:39 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Antitrust and IP: Kodak 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 --- "David A. Wagner" wrote: > I still don't understand this monopoly theory, and especially not how > quote you posted about "exploiting a monopoly in one market to expand > into other markets, or to enhance a monopoly in a second market" > might apply here. > > Who's the monopolist here? Not any one movie studio; they've got > plenty of competition. Not the MPAA; it's not selling anything. > Not the player manufacturers; they've got tons of competitors, too. These are good questions. I'm shooting from the hip, here: I think that antitrust laws need not identify a single company as "the monopoly" if several companies are acting under explicit agreement to engage in common anticompetitive practices. A collusion by movie studios could easily be a single monopoly, could it not? Also, you could argue that each studio is a monopoly in marketing each individual movie that it has created. Of course, this IS a legal monopoly because of copyright. So the first market is for movie copyrights, individually or collectively among the MPAA members (distinct from the MPAA). The second market is for the grant of access, which under the judge's theory is a separate product. The DVD-CCA has by collusion of the studios become the single source supplier for this. The anticompetitive aspects come from the restrictive licencing the DVD-CCA agreement forces on would-be player makers, plus the absurd price of $10,000, which is assisted by the price-fixing collusion of the studios. The DVD player market is a distinct market from the market for access to works (the algorithm is independent of the key). The latter market has compeletely subordinated the former. The situtation is exactly as if only one company was "authorized" by the movie studios to sell ordinary film projectors to theaters. The player market is analogous to the theaters. In fact it's worse than this, because for DVD's the end user actually owns a copy of the film. > Have any of the movie studios used their hold on copyright to start > taking over the player market? I haven't seen any evidence of it. So why can't LiViD make a player? After all, Pavlovich testified their final product doesn't allow the unencrypted movie to be stored on the harddrive. The movie studios don't need to go into business selling players to "take over" that market. > Have any of the player manufacturers used their possession of a > license to start putting movie studios out of business? Not likely. Exactly. If anything, this only hints that this market has been successfully subordinated. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:01:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA16917 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:01:18 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA16914 for ; Thu, 27 Jul 2000 14:01:13 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA06462 for ; Thu, 27 Jul 2000 11:00:32 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma006364; Thu, 27 Jul 00 11:00:19 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA29750; Thu, 27 Jul 2000 12:00:14 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention Date: Thu, 27 Jul 2000 12:03:10 -0600 Message-ID: <000501bff7f4$ecfc45a0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 From: daw@cs.berkeley.edu (David A. Wagner) > I hope Kaplan notices that the "licensed disk" theory of circumvention is > nonsensical. If DeCSS circumvents, it circumvents the playing process, not > some hypothetical disk licensing regime. > ... > If the plaintiffs can't produce even a vaguely-credible authority structure, > it would seem to bolster the case that DeCSS doesn't even circumvent anything, > not even the playing process; if there's no authority structure, there's no > 1201(a)-circumvention. You can't just make one up after the fact, as you go > along. This is one thing that has vexed for a long time. How can one make a claim of circumvention without defining (a) what "authority" is and (b) how the D's have violated it. The Court seems to be simply taking absence of authority as a given just because the P's has bough suit. "The D's are descrambling and we want them to stop" is irrelevant unless you can show with specificity the legal basis for the court to act. This is like bringing a trespass charge because you don't like people walking through the woods behind you house. Unless you can show you own those woods -- you have no case (in terms of trespassing). "With all this manure there must be a pony somewhere!" Is not a reasonable assumption in a case of horse-thievery. The P's better have a pretty good description of the horse and evidence the D's took it. Even traffic court require showing the violation in specificity 35MPH in a 25MPH zone and bring evidence (radar gun etc.) regarding that evidence. A ticket for going 35MPH is incomplete and impermissable -- one must state the local speed limit (or unsafe for conditions -- with evidence). For the court to assume that the 35MPH **must** be illegal because the police issued the ticket ignores the possibility of bias or ill will against the defendant. The without specifying authority the P's fails to give the "speed limit" on their ticket, and thus have no valid claim. This seems basic and obvious to me, but it doesn't seem to bother the Court though and that is troubling. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:09:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA17334 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:09:25 -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 OAA17330 for ; Thu, 27 Jul 2000 14:09:19 -0400 Message-ID: <20000727180815.21307.qmail@web513.mail.yahoo.com> Received: from [131.44.121.4] by web513.mail.yahoo.com; Thu, 27 Jul 2000 11:08:15 PDT Date: Thu, 27 Jul 2000 11:08:15 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Facts and Appeals 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 --- Chris Moseng wrote: > Fair enough, but speaking from my inexperienced shoes, they can send > the parties back to find more facts, or send the case to be heard by > another judge, right? I read several appeals of cases involving recusal denials. In one case, the appeals court upheld the recusal denial, but upon remanding for other reasons, sent the case to a different judge because the request for recusal was not totally frivolous. By the way, the caselaw is full of frivolous recusal requests. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:18:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18321 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:18:00 -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 OAA18318 for ; Thu, 27 Jul 2000 14:17:59 -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:2.21) with ESMTP id OAA00117 for ; Thu, 27 Jul 2000 14:17:28 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA25289; Thu, 27 Jul 2000 14:17:27 -0400 (EDT) Date: Thu, 27 Jul 2000 14:17:27 -0400 (EDT) Message-Id: <200007271817.OAA25289@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause In-Reply-To: <20000727164431.7584.qmail@web515.mail.yahoo.com> References: <20000727164431.7584.qmail@web515.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > > --- "Peter D. Junger" wrote: > > > Both copyrights and patents are traditionally referred to as > > monopolies. But it is an abuse of the copyright or patent to use it > > to extend the monopoly to cover matters not included in the grant. > > Support for this: Note also the expressed desire on the part of both houses of Congress and the conference committee on the DMCA to preserve the Betamax decision --- they explicitly say, over and over, that the law is not meant to ban any device with a legitimate purpose, where the notion of a legitimate purpose is defined, as in Betamax, by the law, not by the copyright holders. Contrast with CSS, where licensees are required to implement region coding, a mechanism which has nothing to do with the purposes of the law, at least not that I'm aware of. I've posted long excerpts from relevant speeches and the Conference Committee report before; those who missed it the first time around can find them in the legislative history section of my essay on the copyright holder's authority ... go to http://www.ai.mit.edu/people/rst/dmca/auth/auth.html and follow the link marked "... Congressional intent". rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:35:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18572 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:35:52 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18569 for ; Thu, 27 Jul 2000 14:35:45 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA10272 for ; Thu, 27 Jul 2000 13:34:50 -0500 Message-ID: <39807A3B.9B5FDCBD@mninter.net> Date: Thu, 27 Jul 2000 13:06:51 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention References: <000501bff7f4$ecfc45a0$87ce0593@ia.nsc.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 John Zulauf wrote: > Even traffic court require showing the violation in specificity > 35MPH in a 25MPH zone and bring evidence (radar gun etc.) > regarding that evidence. A ticket for going 35MPH is incomplete and > impermissable -- one must state the local speed limit (or unsafe for > conditions -- with evidence). For the court to assume that the 35MPH > **must** be illegal because the police issued the ticket ignores the > possibility of bias or ill will against the defendant. The > without specifying authority the P's fails to give the "speed > limit" on their ticket, and thus have no valid claim. You're being sued because you're guilty; you're guilty because you've been sued. I've been making noise about this for a while now, and it seems that the judge thinks it is not a matter of fact, but of law. Those parts of the claims to authority that are fact are, I suppose, indisputable, such as the fact that there is no end user license for DVDs. I was thinking there would certainly be some testimony inquiring of when the plaintiffs witnesses thought authorization occurred, but I thought wrong. So anything to be said about this issue will have to be brought up in the briefs filed before August 8. Personally, I think that the document at http://www.ai.mit.edu/people/rst/dmca/auth/auth.html written by Robert Thau would be a great start for an amicus brief on these issues. I would certainly hope that it hasn't been concluded that DeCSS circumvents, and I think that Mr. Thau's comprehensive analysis takes the facts as they exist and explains away the lawsuit. > This seems basic and obvious to me, but it doesn't seem to bother the > Court though and that is troubling. I agree. Being unfamiliar with the actual workings of the court system (but a big fan of _Law_And_Order_) it seems like something was skipped. I hope not for long. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:40:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18687 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:40:25 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18684 for ; Thu, 27 Jul 2000 14:40:24 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id LAA00101 for ; Thu, 27 Jul 2000 11:39:47 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id LAA29354; Thu, 27 Jul 2000 11:37:45 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention Date: 27 Jul 2000 11:36:36 -0700 Organization: A poorly-installed InterNetNews site Lines: 18 Distribution: isaac Message-ID: <8lpvfk$sl9$1@blowfish.isaac.cs.berkeley.edu> References: <20000725175356.C4026@localhost> <8lo2t2$s29$1@blowfish.isaac.cs.berkeley.edu> <397F9F3B.E0E2D1A2@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati wrote: > I can imagine what the witness meant by an "unlicensed disk". [i.e., a disk created by someone with a CSS disk production license] Yeah, but you didn't read the rest of my post! In the second half of my post, I argued that, even if there is some definition of unlicensed disk like this, it is irrelevant. DVD players play disks that aren't CSS-encrypted! Unencrypted disks can't possibly be viewed as licensed, under your interpretation. Therefore, most DVD players will play -- are designed to play -- unlicensed disks. If DeCSS circumvents a disk licensing regime, then so do most of the other (so-called "legitimate") DVD players out there, too. The witness's statement is simply incompatible with your proposed interpretation of the phrase "unlicensed disk". The witness's claim just doesn't make sense to me. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:43:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18801 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:43:33 -0400 Received: from abraham.cs.berkeley.edu (abraham.CS.Berkeley.EDU [128.32.37.121]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18798 for ; Thu, 27 Jul 2000 14:43:31 -0400 Received: from blowfish.isaac.cs.berkeley.edu (blowfish.isaac.cs.berkeley.edu [169.229.3.195]) by abraham.cs.berkeley.edu (8.8.6/8.8.6) with ESMTP id LAA00141 for ; Thu, 27 Jul 2000 11:42:53 -0700 Received: (from daw@localhost) by blowfish.isaac.cs.berkeley.edu (8.8.7/8.8.7) id LAA29376; Thu, 27 Jul 2000 11:40:51 -0700 To: dvd-discuss@eon.law.harvard.edu Path: not-for-mail From: daw@cs.berkeley.edu (David A. Wagner) Newsgroups: isaac.lists.dvd-discuss Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Date: 27 Jul 2000 11:40:42 -0700 Organization: A poorly-installed InterNetNews site Lines: 13 Distribution: isaac Message-ID: <8lpvna$slv$1@blowfish.isaac.cs.berkeley.edu> References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Previously you asked "I can't imagine what the witness meant by an > "unlicensed disk"." I'm beginning to wonder if an unlicensed disk is one > that does NOT use CSS. Yes, and I addressed this interpretation of the phrase in my post. If unencrypted disks are considered unlicensed, then since most DVD players will play them, we must conclude that, if DeCSS circumvents the disk licensing regime, then most DVD players do, too. That's a pretty absurd result, so one of our premises must not have made any sense. I submit that the witness's claim that "DVD players aren't supposed to play unlicensed disks" is the one to be skeptical of. I suggest that the witness just doesn't understand the authorization and licensing structure too well, and simply made a mis-statement. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 14:47:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA18935 for dvd-discuss-outgoing; Thu, 27 Jul 2000 14:47:56 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA18931 for ; Thu, 27 Jul 2000 14:47:50 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id NAA12062 for ; Thu, 27 Jul 2000 13:46:56 -0500 Message-ID: <39807D0F.2D7DF791@mninter.net> Date: Thu, 27 Jul 2000 13:18:55 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case References: <20000727174939.17584.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 > --- "David A. Wagner" wrote: > I still don't understand this monopoly theory, and especially not > how quote you posted about "exploiting a monopoly in one market to > expand into other markets, or to enhance a monopoly in a second > market" might apply here. > Who's the monopolist here? Not any one movie studio; they've > got plenty of competition. Not the MPAA; it's not selling > anything. Not the player manufacturers; they've got tons of > competitors, too. Bryan Taylor is right that every studio has a monopoly in the movies they own. Also, economically speaking, oligopolies can collude and act as one -- as a monopoly -- and it is just as illegal under anti-trust. The anti-trust statutes were implemented to prevent market power from distorting economies. Companies in industries with high barrier to entry, and few-to-no firms in competition, have the opportunity to exert market power and hamper the efficiency and innovation of markets. Monopolies aren't necessarily illegal, and don't necessarily hinder competition, but they are under special scrutiny to play nice. Oligopolies are under similar scrutiny to make sure they compete, not ally with one another and act as a monopoly. If they are competitive, they have a much harder time exerting market power on other industries because there's always another company out there of similar power competing. The CSS system, while at first seems to be simple intra-firm cooperation to bring consumers compatible and enjoyable products (legal), with the institution of this lawsuit and the contractual restrictions on player functions has become a collusive market distorter (illegal). They got legal advice when planning to use CSS, because they do not want accusations of collusion or copyright abuse. Such accustions could put a crimp in their plans to stop non-infringing uses for all time. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:00:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19079 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:00:35 -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 PAA19076 for ; Thu, 27 Jul 2000 15:00:30 -0400 Message-ID: <20000727185928.12886.qmail@web510.mail.yahoo.com> Received: from [131.44.121.4] by web510.mail.yahoo.com; Thu, 27 Jul 2000 11:59:28 PDT Date: Thu, 27 Jul 2000 11:59:28 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Panama v American Tobacco -- Recusal in "tobacco matter" 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 My wife (who is an lawyer) regularly sends me the Courthouse News, which has short summaries of all the recent appeals cases, with thinks to the full text of the decisions. It's a nice resource: http://www.courtnews.com In addition to what I discuss here, there are articles on Napster and Scour. Anyway, I was rather surprised to see a very interesting appeal to the 5th Circuit involving recusal, where a judge's former trial association submitted an amicus brief in a "tobacco matter". The case is: __________________________ Republic of Panama v. American Tobacco Company, Inc. No. 99-30685 (5th Cir. 7/20/2000) http://www.ca5.uscourts.gov/opinions/pub/99/99-30685-CV0.HTM Prior to his appointment to the district court, Judge Barbier was president of the Louisiana Trial Lawyer's Association ("LTLA") from approximately October 1989-October 1990. In April 1991, LTLA submitted an amicus brief on behalf of the plaintiffs in a product liability suit against tobacco companies. The LTLA amicus brief alleged that smoking was addictive and caused cancer. The LTLA amicus brief also stated that the tobacco companies have known the dangers of smoking for decades. Judge Barbier's name was listed on the brief as president of LTLA. In February 1999, Judge Barbier denied the motion to recuse, stating that he had not participated in the actual writing of the brief and that his term as president had ended when the brief was filed. In the present case, while there is no evidence of actual bias we must consider whether a reasonable person might harbor doubts about the trial judge's impartiality. The fact that Judge Barbier's name was listed on a motion to file an amicus brief which asserted similar allegations against tobacco companies to the ones made in this case may lead a reasonable person to doubt his impartiality. Also, Judge Barbier was listed on this filing with the attorney who is currently representing the Republic of Panama. The trial judge's assertions that he did not participate directly in the writing or researching of the amicus brief do not dissipate the doubts that a reasonable person would probably have about the court's impartiality. We acknowledge that this is a close case for recusal. However, we have previously held that if the question of whether § 455(a) requires disqualification is a close one the balance tips in favor of recusal. In Re: Chevron, 121 F.3d 163, 165 (5th Cir. 1997). Accordingly, we hold that a reasonable person might harbor doubts about the trial judge's impartiality, and thus the district court abused its discretion in denying the defendants' motion to recuse. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:09:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19737 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:09:57 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19731 for ; Thu, 27 Jul 2000 15:09:56 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYD00KDJCMC3V@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:27:49 -0700 (PDT) Date: Thu, 27 Jul 2000 11:48:23 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Trial, day 1, p.52: derivative works In-reply-to: <20000727110313.A1432@localhost> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYD00KDNCMD3V@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > Day 1, p. 52, Shamos: > > 1 A. The end result was a DiVX'd version of Sleepless in > 2 Seattle that was substantially smaller than the original by a > 3 factor of I recall something like 5.6. > > "Di[v]X'd version" is a synonym for "derivative work". > > Why was it necessary to descramble the work on DVD? > > Was descrambling necessary so that a derivative version could be made, not > because descrambling is necessary to copying? > > Is CSS a system that prevents making derivatives? > Is it a system that prevents making copies? > What prevents or hinders someone from making copies after the > "play" button is pressed? > Macrovision? What's that? Is it part of the CSS data-scrambling > algorithm? What was that Mr. Shamos? You said "no"? > > Then why do you say CSS prevents copying? > What? Macrovision is required by contract? Can we see the contract please? If this line of questioning appeared would that be a sufficiently basis for entering the contract into evidence? Is that now beyond us since the trial is over? (If it were entered into the California case, which I believe is still going, could the NY case refer to it?) > Are you aware that 1201(a) offers statutory protection for technological > measures, not contractual measures? > > Are you aware that DeCSS has nothing to do with Macrovision? I worry about these last two statements. Can't the plaintiffs just argue that each measure is independently covered by 1201(a)? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:09:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19730 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:09:56 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19726 for ; Thu, 27 Jul 2000 15:09:54 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYD00KDJCMC3V@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:27:49 -0700 (PDT) Date: Thu, 27 Jul 2000 11:48:23 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Trial, day 1, p.52: computations In-reply-to: <20000727112822.A1727@localhost> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYD00KDKCMC3V@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > Day 1, p. 52, Shamos: > [...] > 21 THE COURT: How much of that compression was > 22 attributable to the elimination of the trailer? > > 23 THE WITNESS: I think the trailer lasts something > 24 like three minutes and the movie lasts close to two hours. > 25 It's just a tiny -- tiny percentage. > > 3 minutes / 120 minutes = 1/40 ==> 2.5%, assuming that data rates > are unchanged. But Shamos just told us that the frame-rate changes, > on line 12 of page 50: > > p. 50 > > 11 movie because the opening trailer is recorded at a different > 12 frame rate than the movie itself and the process assumes that > 13 either one or the other of those speeds is going to be used > > So the data-rate will almost certainly be different. Is it higher or > lower for a trailer? Do the advertizements get extra data so that > they look good? Many of the trailers I've seen on my DVDs are in interlaced format -- which in a sense means that the effective frame rate is actually *half* of the frame of the typically progressive scan encoded DVD. In any event, the trailer really is a trivial portion, by size, (however not so trvial in the desire to get rid of it -- its the one thing that ruins the DVD experience for me; I don't need to know that the 13th Warrior and Mission to Mars are *now playing* every time I watch The Sixth Sense) so I don't quite see why we should pound on this. Its the additional material and multiple camera angles that will really eat up space. Some DVD's are encoded with multiple formats as well -- each format is typically encoded seperately (though as an interesting side note that probable isn't necessary). > p. 53 > > 1 Q. And have you and your assistant been able to obtain DiVX > 2 copies of DeCSS films in the size of around 650 megabytes? > > 3 A. Yes, we have by playing with the compression ratio, if you > 4 increase the compression ratio higher than 5.67, then you can > > How much time did this take? More or less than the 10 to 20 hours > required for 17/3 compression ratio? Roughly the same? What > compression ratio did you, I mean your assistant, use? What *effect* does changing the compression ratio have on the output. Not much you say? So why didn't you just crank it up to the maximum setting? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:12:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19821 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:12:56 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19818 for ; Thu, 27 Jul 2000 15:12:54 -0400 Received: by aero.org id <17107-1>; Thu, 27 Jul 2000 12:11:55 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGCAa00596; Thu Jul 27 12:11:46 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 12:07:28 -0700 Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 12:07:26 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 12:11:51 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu "I think that antitrust laws need not identify a single company as "the monopoly" if several companies are acting under explicit agreement to engage in common anticompetitive practices." Correct. The Anti-Trust laws apply to monopolies (one company) or any number that act in a concerted fashion to reduce competition. Trust : " a combination of firms or corporations formed by a legal agreement; especially one that reduces or threatens to to reduce competition" - Webster's ninth Collegiate Dictionary. Your analogy with the movie projectors is VERY VERY apt. What's the difference between the studios selling 8mm film to me in a special container box that can only be shown using a special licensed projector, that they control who gets the license to make, and that has no other use but to show their special container films. But also, they want it to be a crime if I cut open the special container and respool the film onto standard 8mm film reels. Too bad that didn't come out in the trial. Bryan Taylor @eon.law.harvard.edu on 07/27/2000 10:57:08 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case --- "David A. Wagner" wrote: > I still don't understand this monopoly theory, and especially not how > quote you posted about "exploiting a monopoly in one market to expand > into other markets, or to enhance a monopoly in a second market" > might apply here. > > Who's the monopolist here? Not any one movie studio; they've got > plenty of competition. Not the MPAA; it's not selling anything. > Not the player manufacturers; they've got tons of competitors, too. These are good questions. I'm shooting from the hip, here: I think that antitrust laws need not identify a single company as "the monopoly" if several companies are acting under explicit agreement to engage in common anticompetitive practices. A collusion by movie studios could easily be a single monopoly, could it not? Also, you could argue that each studio is a monopoly in marketing each individual movie that it has created. Of course, this IS a legal monopoly because of copyright. So the first market is for movie copyrights, individually or collectively among the MPAA members (distinct from the MPAA). The second market is for the grant of access, which under the judge's theory is a separate product. The DVD-CCA has by collusion of the studios become the single source supplier for this. The anticompetitive aspects come from the restrictive licencing the DVD-CCA agreement forces on would-be player makers, plus the absurd price of $10,000, which is assisted by the price-fixing collusion of the studios. The DVD player market is a distinct market from the market for access to works (the algorithm is independent of the key). The latter market has compeletely subordinated the former. The situtation is exactly as if only one company was "authorized" by the movie studios to sell ordinary film projectors to theaters. The player market is analogous to the theaters. In fact it's worse than this, because for DVD's the end user actually owns a copy of the film. > Have any of the movie studios used their hold on copyright to start > taking over the player market? I haven't seen any evidence of it. So why can't LiViD make a player? After all, Pavlovich testified their final product doesn't allow the unencrypted movie to be stored on the harddrive. The movie studios don't need to go into business selling players to "take over" that market. > Have any of the player manufacturers used their possession of a > license to start putting movie studios out of business? Not likely. Exactly. If anything, this only hints that this market has been successfully subordinated. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:17:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19919 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:17:29 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19916 for ; Thu, 27 Jul 2000 15:17:18 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA14848; Thu, 27 Jul 2000 15:19:41 -0400 Date: Thu, 27 Jul 2000 15:19:36 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000727151936.C14138@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D4F@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D4F@mail2.onetouch.com>; from hartman@onetouch.com on Thu, Jul 27, 2000 at 08:22:39AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 08:22:39AM -0700, Richard Hartman wrote: > ... > When you get right down to it, -any- invention could > be viewed as a "creative expression" ... but I don't > think that the courts would then take that to mean > that all inventions are protected by first amendment > rights. > > I personally feel that the free speech protection has > been applied to code by the courts due to a fundamental > misunderstanding of the nature of computers. However, > it has been applied and we should by all means try to > continue to defend the results of this misunderstanding. > > Touretzky did a good job of stretching the free speech > umbrella from source code to cover object code as well. > Wonderfully argued. > > I do not think, though, that you could then get the courts > to buy extending it the next step to cover hardware that > does the same job as software. To the courts, if it's > hardware it's an invention, a material object. Software > is something nebulous to them, so it became "speech" and > got protected. But hardware is physical. Unless you could > start comparing it to sculpture (protected as artistic > expression) I don't think you'd get anyware trying to > class a hardware TPM as speech just so that you could > create the conflict between circumventing a TPM under > 1201 vs. free speech. Yes, I think it is a difficult step to take, from inventing a plan on paper to implementing the plan in silicon. But that is what Congress decided when it extended copyright law to cover designs of computer chips in silicon--not patent law. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:17:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA19930 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:17:58 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA19926 for ; Thu, 27 Jul 2000 15:17:55 -0400 Received: by aero.org id <17118-4>; Thu, 27 Jul 2000 12:17:08 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdVDAa00596; Thu Jul 27 12:16:46 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 12:15:13 -0700 Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 12:15:12 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 12:16:55 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I read your article. I think it should be Sent to the commerce department as comments on the DMCA Information can be found at http://www.eff.org/pub/Intellectual_property/DMCA/20000605_dmca_comments_request.html "Robert S. Thau" @eon.law.harvard.edu on 07/27/2000 11:19:22 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 6, p.998: Kaplan on monopolies clause Bryan Taylor writes: > > --- "Peter D. Junger" wrote: > > > Both copyrights and patents are traditionally referred to as > > monopolies. But it is an abuse of the copyright or patent to use it > > to extend the monopoly to cover matters not included in the grant. > > Support for this: Note also the expressed desire on the part of both houses of Congress and the conference committee on the DMCA to preserve the Betamax decision --- they explicitly say, over and over, that the law is not meant to ban any device with a legitimate purpose, where the notion of a legitimate purpose is defined, as in Betamax, by the law, not by the copyright holders. Contrast with CSS, where licensees are required to implement region coding, a mechanism which has nothing to do with the purposes of the law, at least not that I'm aware of. I've posted long excerpts from relevant speeches and the Conference Committee report before; those who missed it the first time around can find them in the legislative history section of my essay on the copyright holder's authority ... go to http://www.ai.mit.edu/people/rst/dmca/auth/auth.html and follow the link marked "... Congressional intent". rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:26:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20253 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:26:01 -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 PAA20250 for ; Thu, 27 Jul 2000 15:26:00 -0400 Received: from ip205.bedford9.ma.pub-ip.psi.net ([38.32.79.205]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13HtHb-0005KP-00 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 15:25:28 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Date: Thu, 27 Jul 2000 15:19:14 -0400 Message-ID: References: <8lpvna$slv$1@blowfish.isaac.cs.berkeley.edu> In-Reply-To: <8lpvna$slv$1@blowfish.isaac.cs.berkeley.edu> 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 PAA20251 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On 27 Jul 2000 11:40:42 -0700, daw@cs.berkeley.edu (David A. Wagner) wrote: >> Previously you asked "I can't imagine what the witness meant by an >> "unlicensed disk"." I'm beginning to wonder if an unlicensed disk is one >> that does NOT use CSS. > >Yes, and I addressed this interpretation of the phrase in my post. >If unencrypted disks are considered unlicensed, then since most DVD >players will play them, we must conclude that, if DeCSS circumvents >the disk licensing regime, then most DVD players do, too. That's a >pretty absurd result, so one of our premises must not have made any >sense. I submit that the witness's claim that "DVD players aren't >supposed to play unlicensed disks" is the one to be skeptical of. >I suggest that the witness just doesn't understand the authorization >and licensing structure too well, and simply made a mis-statement. Note that licensed DVD players _will_ play discs that aren't CSS-encrypted, while DeCSS won't. So, if the witness was correct in his testimony, DeCSS is more compliant than the licensed players are. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:26:24 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20261 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:26:24 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20258 for ; Thu, 27 Jul 2000 15:26:20 -0400 Received: by aero.org id <17090-7>; Thu, 27 Jul 2000 12:25:28 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKFAa00596; Thu Jul 27 12:25:07 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 12:24:27 -0700 Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 12:24:25 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 12:25:27 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I would take your last sentence one further. They don't seem to understand: encryption, key managment, technology, the difference between a license and sale of copyright material, authorization....etc etc.ad nauseum daw@cs.berkeley.edu (David A. Wagner)@eon.law.harvard.edu on 07/27/2000 11:51:57 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case > Previously you asked "I can't imagine what the witness meant by an > "unlicensed disk"." I'm beginning to wonder if an unlicensed disk is one > that does NOT use CSS. Yes, and I addressed this interpretation of the phrase in my post. If unencrypted disks are considered unlicensed, then since most DVD players will play them, we must conclude that, if DeCSS circumvents the disk licensing regime, then most DVD players do, too. That's a pretty absurd result, so one of our premises must not have made any sense. I submit that the witness's claim that "DVD players aren't supposed to play unlicensed disks" is the one to be skeptical of. I suggest that the witness just doesn't understand the authorization and licensing structure too well, and simply made a mis-statement. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:27:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20333 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:27:45 -0400 Received: from dial149.roadrunner.com (sf-du149.cybermesa.com [209.12.75.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20330 for ; Thu, 27 Jul 2000 15:27:40 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id NAA02112 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:27:22 -0600 Date: Thu, 27 Jul 2000 13:27:22 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.55: Human visual perception and compression Message-ID: <20000727132721.B1727@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 Day 1, p. 55, Shamos: 2 We don't have that technology right now at any 3 affordable price, so it's always necessary to compress the 4 videos. And there is an organization called the Motion 5 Picture Experts Group, MPEG, which has been doing studies for 6 a long time on how one can compress video in such a way that 7 even though it is lossy, none of the -- or very little of the 8 visual quality is lost to the human being. 9 And this is done by a process called perceptal 10 encoding. Cognitive psychologists have studied the human 11 visual system and they know the ways in which the human eye is 12 sensitive to certain things. 13 For example, the human eye is insensitive to small, 14 slow changes in color, but it is extremely sensitive to 15 changes in contrast. That's what enables us to pick out edges 16 of objects. 17 So, in perceptual encoding, which is used in MPEG, 18 that information from the video stream is eliminated that a 19 human being cannot see. False. There is no guarantee that the information is something "a human cannot see." The method of discarding data is chosen in an effort to eliminate the least perceptually significant information before the more significant information. Some of the less significant information is very probably _irrelevant_, but these techniques make *no* guarantee that all relevant information is retained. Quite the opposite --- for sufficiently high lossy compression ratios perceptual quality is *known* to be degraded. 19 Therefore, if you can't see it, even 20 though there's less information there, it still looks as good. This is highly misleading, and for a guy who lectures on the subject of compression 50 times per year, it is inconceivable that he doesn't know this. The question is if the degradation is perceptually significant or not. There is no free lunch. At some point the loss always becomes noticeable, and eventually unbearable. 17/3 compression from a DVD is perceptually significant. If Mr. Shamos' representations about his qualifications are accurate, he knows this. p. 60 25 Q. Dr. Shamos, is there a difference in perceptual quality p. 61 1 depending on who is doing the laptop screening? 2 A. It's very popular with a laptop to be directly on axis, to 3 be perpendicular to the screen and hopefully in the center of 4 the screen, which would not be necessary with a TV set. So now he's an expert of human perception and display device metrics too? This is just pathetic. Here are a few Mr. Shamos didn't mention: 1. Refresh rate. 2. Pixel count. 3. Pixel size. 4. Color depth. 5. Color corrections (e.g. "gamma"). 12 This is a long shot. Then we are going to take a 13 closeup of human faces and some exceptional detailing in the 14 movie, which is achievable with DVD. Motion-induced jaggies are achievable with DVD Video too. I've had them hop off the screen and slap me around even when I was not paying close attention. 17 THE COURT: Let's not turn up the sound. Does this mean it could be heard or not? Sync'ing the sound to the images was a big problem that Mr. Shamos hear-sayed his assistant as observing. This is relevant to the quality of the MPEG-4 movie. Am I correct in saying that sync'ing problems should get worse over a long demo of a movie than a short one? There is a not-so-widely-known tid-bit that the best way to improve the perceptual quality of an NTSC signal *is to improve the sound quality*. People will report liking the *image* better if you increase the audio bandwidth of an NTSC signal. I don't remember if one holds the total bandwidth constant or if one holds the video bandwidth constant, or if one makes a comparison of raising either one or the other bandwidth a set amount or fraction. Sound quality matters. 22 Then there's a point in this scene where a reflection 23 appears in the glass over there of exceptionally high detail. 24 In general, because of the DVD quality, everything is of a 25 high degree of sharpness. Not compared with an analog 35mm print. That blows DVD Video away. The fact that most people don't notice too much difference is more a comment on the state of most movie theaters than the quality of DVD Video. p. 62 12 It is possible that upon close examination to find 13 certain effects in here that are referred to as artifacts 14 which are differences between the DVD quality and the DiVX'd 15 quality. I'll try to point out some of them, although it's 16 extremely difficult to find them. But only because you rigged the test by selecting material that the encoder handles well. 17 We've conducted numerous lay experiments in which we 18 asked people to come in the room and tell whether or not this 19 was a DVD or DiVX. By "lay" experiment, what this "expert" means is that he didn't bother to go to CMU's excellent library and find a good methodology for measuring subjective image quality. Instead he used bad methodology. p. 64 7 What I think we've just demonstrated and it's not my 8 opinion, but anybody, including the Court, who observed it 9 that at this compression ratio, 5.67 on this movie, that the 10 quality of the DiVX was nearly indistinguishable from the DVD 11 except possibly to an expert. Subjective image quality is an area of current research. It would be possible to make controlled comparisons of the 650 MB MPEG-4 with VCR tapes, for example. There are *metrics*, *numbers*, that people work hard to define and relate to subjective quality. Those don't have to do with Mr. Shamos' (mis-)representations of what "anybody, including the Court" may think. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:30:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20687 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:30:35 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20682 for ; Thu, 27 Jul 2000 15:30:20 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id PAA14908 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 15:33:28 -0400 Date: Thu, 27 Jul 2000 15:33:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000727153323.D14138@eldritchpress.org> References: <20000727174939.17584.qmail@web513.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000727174939.17584.qmail@web513.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Jul 27, 2000 at 10:49:39AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 10:49:39AM -0700, Bryan Taylor wrote: > ... > So why can't LiViD make a player? After all, Pavlovich testified their > final product doesn't allow the unencrypted movie to be stored on the > harddrive. The movie studios don't need to go into business selling > players to "take over" that market. It might be interesting if Kaplan rules that DeCSS is illegal but LiViD is not. Strange, but possible. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:36:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20809 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:36:37 -0400 Received: from csimo02.mx.cs.com (csimo02.mx.cs.com [205.188.156.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20806 for ; Thu, 27 Jul 2000 15:36:35 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.84.89b2ac4 (4317) for ; Thu, 27 Jul 2000 15:35:22 -0400 (EDT) Message-ID: <84.89b2ac4.26b1e8fa@cs.com> Date: Thu, 27 Jul 2000 15:35:22 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Hamilton and Jefferson didn't need to be concerned with the use or transmission of information. In the past, and frankly until very recently, what you knew was not as important as what you did. Physical labor was prioritized over intellectual prowess. Which female workers were shown to be role models during and after WW2? It wasn't Ingrid the Engineer, it was Rosie the Riveter. Again, physical labor beats out intellectual prowess. But recently, we've had a paradigm shift. What you know becomes more important. What you can physically do becomes secondary. We can argue as to why this is, but its frankly not relevant. If, in the 1950's, I had described an object that effectively blocks access to a place of business by any means not wanted by the owner, the 1950s man would say I was talking about a fence, or a shield, or maybe a wall. If I were describing the same concept to a 1990's System Administrator, he would think I meant a firewall. What we call "information" has shut down legitimate business (through cracking, DoS, etc.), aided in stealing, its even been used to kill people. Pure information simply cannot have an impact like that in brick and mortar reality. But cyberspace doesnt behave like reality. In there, information is a physical reality. If that's not an indication that we need to change our perception of information, im not sure what is. And I'm not saying what we call information should be illegal. It's not illegal to show how to kill someone, and its not illegal to show someone how to rob a house. In fact, that information is relatively well known. It's been protected under free speech. But in my home state, it's illegal to possess so much as a screwdriver, if its found to be the tool used in a breaking and entering. But, the burden of proof is on the plantiff to prove this tool was used in the B & E. Maybe, if we wanted to talk about illegal DVD copying for example, the prosecutor could charge the defendant with ownership of a tool that advances the crime, but only if he could prove the underlying copying. And I honestly believe that for these purposes, source code and executables should get the same treatment. I know that people say executables actually do the damage and source code is only a blueprint. But here's my issue with that. A blueprint for a bomb is free speech. the ingredients arent. What's the difference? You cannot make a bomb out of blueprints. You can make a bomb out of its ingredients. Source Code is both. It's the blueprints, and its the ingredients. Source Code is like a do-it-yourself kit. We give you the ingredients (source code) and you make it (compile it). There are alternatives to Source Code for sharing information about how programs run. Pseudocode is a great example. It wont compile, so you can't really make anything out of it, but it does provide the blueprints, through which ingredients can be brought together and put in working order. This is what we want to do. No court could ever find that pseudocode isn't free speech. Its speech in its purest form. And it can't be turned into an executable. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:38:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA20905 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:38:44 -0400 Received: from dial166.roadrunner.com (sf-du166.cybermesa.com [209.12.75.166]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA20896 for ; Thu, 27 Jul 2000 15:38:40 -0400 Received: (from paul@localhost) by dial166.roadrunner.com (8.8.7/8.8.7) id NAA02272 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:39:11 -0600 Date: Thu, 27 Jul 2000 13:39:10 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trial, day 1, p.52: derivative works Message-ID: <20000727133910.C1727@localhost> References: <20000727110313.A1432@localhost> <0FYD00KDNCMD3V@mta5.snfc21.pbi.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <0FYD00KDNCMD3V@mta5.snfc21.pbi.net>; from qed@pobox.com on Thu, Jul 27, 2000 at 11:48:23AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 11:48:23AM -0700, Paul Hsieh wrote: > > Day 1, p. 52, Shamos: > > > > 1 A. The end result was a DiVX'd version of Sleepless in > > 2 Seattle that was substantially smaller than the original by a > > 3 factor of I recall something like 5.6. > > > > "Di[v]X'd version" is a synonym for "derivative work". > > > > Why was it necessary to descramble the work on DVD? > > > > Was descrambling necessary so that a derivative version could be made, not > > because descrambling is necessary to copying? > > > > Is CSS a system that prevents making derivatives? > > Is it a system that prevents making copies? > > What prevents or hinders someone from making copies after the > > "play" button is pressed? > > Macrovision? What's that? Is it part of the CSS data-scrambling > > algorithm? What was that Mr. Shamos? You said "no"? > > > > Then why do you say CSS prevents copying? > > What? Macrovision is required by contract? Can we see the contract please? > > If this line of questioning appeared would that be a sufficiently basis > for entering > the contract into evidence? Is that now beyond us since the trial is > over? (If it > were entered into the California case, which I believe is still going, > could the NY > case refer to it?) My _understanding_ from the trial transcript is that the contracts are in evidence, but are sealed. There is a motion to unseal. > > Are you aware that 1201(a) offers statutory protection for technological > > measures, not contractual measures? > > > > Are you aware that DeCSS has nothing to do with Macrovision? > > I worry about these last two statements. Can't the plaintiffs just > argue that each > measure is independently covered by 1201(a)? Macrovision is in the view of the law (I think) a technological measure which controls the exercise of an exclusive right. That would be section 1201(b), not (a). From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:44:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21121 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:44:00 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21118 for ; Thu, 27 Jul 2000 15:43:51 -0400 Received: by aero.org id <17098-5>; Thu, 27 Jul 2000 12:43:13 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdXJAa00596; Thu Jul 27 12:43:00 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 12:42:40 -0700 Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 12:42:40 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 12:43:10 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Strictly speaking, a group of companies acting together is a trust and does not "act as monopoly" and the anti-trust laws apply to trusts as well as monopolies. One other aspect of the reason for busting trusts is that eventually, trusts and monopolies stagnate and their technology becomes obsolete. At some point, they become so obsolete that when newer processes are developed and other start to use them the trusts or monopolies loose their markets in spectacular fashion creating widespread unemployment and economic upheaval. Look what happened to US Steel's 19th century plants vs Japans 20th century plant, or General Motors 1950's cars still being made in the gas crunching 70's or to the Rubbershops in the 80's. Of course, this has happened before in the USA. The Sherman Anti-Trust act was enacted in 1893 I believe. Teddy Roosevelt was known as the "Trustbuster" and he left office in 1908. Actually Taft busted more trusts than Teddy but he didn't have Teddy's personality. Chris Moseng @eon.law.harvard.edu on 07/27/2000 11:51:57 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case > --- "David A. Wagner" wrote: > I still don't understand this monopoly theory, and especially not > how quote you posted about "exploiting a monopoly in one market to > expand into other markets, or to enhance a monopoly in a second > market" might apply here. > Who's the monopolist here? Not any one movie studio; they've > got plenty of competition. Not the MPAA; it's not selling > anything. Not the player manufacturers; they've got tons of > competitors, too. Bryan Taylor is right that every studio has a monopoly in the movies they own.s Also, economically speaking, oligopolies can collude and act as one -- as a monopoly -- and it is just as illegal under anti-trust. The anti-trust statutes were implemented to prevent market power from distorting economies. Companies in industries with high barrier to entry, and few-to-no firms in competition, have the opportunity to exert market power and hamper the efficiency and innovation of markets. Monopolies aren't necessarily illegal, and don't necessarily hinder competition, but they are under special scrutiny to play nice. Oligopolies are under similar scrutiny to make sure they compete, not ally with one another and act as a monopoly. If they are competitive, they have a much harder time exerting market power on other industries because there's always another company out there of similar power competing. The CSS system, while at first seems to be simple intra-firm cooperation to bring consumers compatible and enjoyable products (legal), with the institution of this lawsuit and the contractual restrictions on player functions has become a collusive market distorter (illegal). They got legal advice when planning to use CSS, because they do not want accusations of collusion or copyright abuse. Such accustions could put a crimp in their plans to stop non-infringing uses for all time. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:54:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21626 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:54:17 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21623 for ; Thu, 27 Jul 2000 15:54:16 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id PAA29715 for ; Thu, 27 Jul 2000 15:53:46 -0400 Date: Thu, 27 Jul 2000 15:53:45 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak 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 07/27/00 at 12:11, 'twas brillig and Michael.A.Rolenz@aero.org scrobe: > > "I think that antitrust laws need not identify a single company as "the > monopoly" if several companies are acting under explicit agreement to > engage in common anticompetitive practices." > > Correct. > The Anti-Trust laws apply to monopolies (one company) or any number that > act in a concerted fashion to reduce competition. > > > Trust : " a combination of firms or corporations formed by a legal > agreement; especially one that reduces or threatens to to reduce > competition" - Webster's ninth Collegiate Dictionary. > Disclaimer: while just recently I've spent lots of time following Ed Hernstadt and others around rather like a hopeful puppydog, that doesn't mean I understand anything. That said, here's my take on why antitrust stuff isn't getting the focus we might think it should.. As I understand it, one of the reasons antitrust is difficult to bring in is that antitrust law is a basis for suit, not a defense to one. IOW, we (meaning the open-source community, potential DVD player manufacturers, and DVD consumers in general) are certainly within our rights to bring a (class-action?) lawsuit alleging anticompetitive tying and/or misuse of copyright on the part of the DVDCCA and the MPAA member studios.. but until and unless such a lawsuit is decided in our favor, the fact that we feel that this is what's going on does not in and of itself constitute a defense to claims brought under a different section of the law. This is why Kaplan could declare that antitrust issues were not a concern, and why the plaintiffs had so many relevancy objections sustained when defense went there. On the other pseudopod... If, as a consequence of pursuing something that *is* an affirmative defense, we were able to prove that the MPAA et al are engaging in activities prohibited under antitrust law, we would then have a) a wedge to lead the court towards an interpretation of the DMCA that avoids antitrust issues, thereby finding in our favor, and/or b) a solid basis for the aforementioned lawsuit and an injunction to prevent the MPAA/DVDCCA from enforcing their CSS licensing terms. The questions recently suggested (by Paul Fenimore?) in response to the transcript of Shamos's testimony are a perfect example of how one might go about doing this. Unfortunately, they took us a week to come up with, and short of another crack at evidentiary proceedings we can't use them, unless there's a way to work those assertions into a law briefing rather than a factual record. >:-( > Your analogy with the movie projectors is VERY VERY apt. What's the > difference between the studios selling 8mm film to me in a special > container box that can only be shown using a special licensed projector, > that they control who gets the license to make, and that has no other use > but to show their special container films. But also, they want it to be a > crime if I cut open the special container and respool the film onto > standard 8mm film reels. > Too bad that didn't come out in the trial. [...] Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:55:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21675 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:55:10 -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 PAA21659 for ; Thu, 27 Jul 2000 15:55:06 -0400 Message-ID: <20000727195349.14317.qmail@web514.mail.yahoo.com> Received: from [131.44.121.4] by web514.mail.yahoo.com; Thu, 27 Jul 2000 12:53:49 PDT Date: Thu, 27 Jul 2000 12:53:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Antitrust and IP: Kodak 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 --- Michael.A.Rolenz@aero.org wrote: > The Anti-Trust laws apply to monopolies (one company) or any number > that act in a concerted fashion to reduce competition. > > Trust : " a combination of firms or corporations formed by a legal > agreement; especially one that reduces or threatens to to reduce > competition" - Webster's ninth Collegiate Dictionary. I would assume that most quotes from caselaw that limit what a monopoly can do are also directly applicable to trusts. > Your analogy with the movie projectors is VERY VERY apt. What's the > difference between the studios selling 8mm film to me in a special > container box that can only be shown using a special licensed > projector, that they control who gets the license to make, and > that has no other use but to show their special container films. > But also, they want it to be a crime if I cut open the special > container and respool the film onto standard 8mm film reels. I'm still trying to figure out what case it was that spanked the studios for tying to projectors. > Too bad that didn't come out in the trial. It seems like it's all a matter of law. The fundamental facts are undisputed -- the studios, DVD manufacturers, and the DVD-CCA all have contracts that are on record. Actually, the DVD-CCA IS a monopoly, aren't they. If you accept the MPAA's position that the DVD-CCA issues CSS licences as the expression of the access grant, then the DVD-CCA is a single source supplier with the collective market power of all the studios behind them. For example, I can't go negotiate independently with the studios for access to their works the way I can if I'm a theater, because the studios have created an access control trust and embodied it in the form of the DVD-CCA to subordinate the player market the way the have always wanted to subordinate the theater market. In fact, if this case is upheld, why do the studios need the theaters any more? They'd much prefer direct e-commerce of movies to consumers who can play them on their "home theaters" since the DMCA eliminates all antitrust barriers for them, according to Kaplan. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:55:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21721 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:55:42 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21715 for ; Thu, 27 Jul 2000 15:55:28 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYD00EWNDNYIX@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:50:22 -0700 (PDT) Date: Thu, 27 Jul 2000 12:10:34 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and copying to disk In-reply-to: <397FDD0C.18B0E3A4@mit.edu> To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYD00EWPDNYIX@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Paul Hsieh wrote: > > David Wagner wrote: > > > [...] By the way, on many computers, if you don't have enough physical memory > > > (or if you switch tasks to another application while the DVD player is > > > running, and that other application uses a fair amount of memory), I'd > > > imagine that the unencrypted content could easily be swapped or paged > > > out to hard disk, unless the software players take extraordinary measures > > > to prevent this. (I know a little about it, because as a cryptographer, > > > one has to worry about keys being swapped or paged to disk and staying > > > there for a while. Every cryptographer I've spoken says it is hard, if > > > not impossible, to reliably prevent this on most Windows platforms.) > > > > Well, Windows does support the concept of "critical sections" where no task > > scheduling or even interrupt processing can occurr. Is that a sufficient alternative? > > The DVD player would have to be in a "critical section" whenever > descrambled content was available, i.e. whenever the movie was > playing. This means no background processing, no easy way to > switch between watching a movie and doing something else, no > paging (I think, though I don't know enough about how Windows > does this), and lots of other things that I'm probably forgetting. > Generally, you want to avoid being in critical sections as much > as possible, since they become bottlenecks. Even if you could > "secure" the movie while playing it in a critical section, > the resulting software player would be a usability disaster. Not exactly. As we know the keys are buried in the software somewhere in an encrypted form anyways. So whatever process is used to recover the keys would need to be applied every time a CSS decryption was performed. This act would need to be blocked by a critical section to ensure that intermediate results were not "paged out" by a background task switch. In theory this would not need to be the biggest bottleneck of the whole DVD playback process, since the CSS process is relatively small overhead. Of course under such a scheme writing "special code" in place of calls to the Win32 critical section APIs would be a trivial attack ... -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 15:55:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA21728 for dvd-discuss-outgoing; Thu, 27 Jul 2000 15:55:44 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA21720 for ; Thu, 27 Jul 2000 15:55:42 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYD00EWNDNYIX@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:50:23 -0700 (PDT) Date: Thu, 27 Jul 2000 12:10:34 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Facts and Appeals In-reply-to: To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYD00EWSDNYIX@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 > No they can't send out for more facts. The appellate court can only afirm > or overturn a verdict based upon the record presented to it. Hmmm ... that's a bit of a bummer. So what does that mean in terms of what we can do now? He won't rule until August/September right? > Chris Moseng @eon.law.harvard.edu on 07/26/2000 10PM > Subject: Re: [dvd-discuss] Facts and Appeals > > "James S. Tyre" wrote: > > Appellate Law 101, class is now in session. ;-) > > > > The appellate courts do *not* entertain new facts. Period. End of > > discussion. [1] > > Fair enough, but speaking from my inexperienced shoes, they can send the > parties back to find more facts, or send the case to be heard by another > judge, right? > > That's really what I was driving at. > > Anyway, I don't know where the burden of discovery of facts about the > judge's relation to TW lay. As I stated, I think that the recusal motion > and affadavit put things in Kaplan's lap. He had the option to present > new facts to convince me that he is impartial, but instead he argued it > was irrelevant. It seems weaker to me. > > Always learning, > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:01:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA21898 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:01:37 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA21895 for ; Thu, 27 Jul 2000 16:01:35 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYD00EFECZVLR@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 11:35:55 -0700 (PDT) Date: Thu, 27 Jul 2000 11:56:04 -0700 From: Paul Hsieh Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and copying todisk In-reply-to: To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYD00EFFCZVLR@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) Content-type: text/plain; charset=US-ASCII Content-transfer-encoding: 7BIT Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > I can't speak for Windows98 or 2000 but the advice I got from microsoft on > attempting something like that in Windows95 was "you'd have to write a > virtual device driver [i.e., microsoft speak for assembly language]....I > don't recommend you try that". In Win32 I believe you can just call "EnterCriticalSection(NULL)" or something like that. Any time I've seen this it has been coded in straight C + Win32 API calls. If you were to do this in a ring-0 VDD or WinNT kernel driver, all you would need to do is a "cli / sti" around your code (actually in Win98 you can do this in user mode code, but that's just a defect in the OS architecture.) Anyhow my question really is -- is this a sufficient substitute, or does it provide a way, to guarantee that a region of memory is not paged out to disk? > Paul Hsieh @eon.law.harvard.edu on 07/26/2000 11pm > Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and > copying to disk > > David Wagner wrote: > > [...] By the way, on many computers, if you don't have enough physical > memory > > (or if you switch tasks to another application while the DVD player is > > running, and that other application uses a fair amount of memory), I'd > > imagine that the unencrypted content could easily be swapped or paged > > out to hard disk, unless the software players take extraordinary measures > > to prevent this. (I know a little about it, because as a cryptographer, > > one has to worry about keys being swapped or paged to disk and staying > > there for a while. Every cryptographer I've spoken says it is hard, if > > not impossible, to reliably prevent this on most Windows platforms.) > > Well, Windows does support the concept of "critical sections" where no task > scheduling or even interrupt processing can occurr. Is that a sufficient > alternative? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:10:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22222 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:10:12 -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 QAA22219 for ; Thu, 27 Jul 2000 16:10:11 -0400 Received: from ip205.bedford9.ma.pub-ip.psi.net ([38.32.79.205]) by relay21.smtp.psi.net with smtp (Exim 3.13 #3) id 13HtyN-0006Fb-00 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 16:09:39 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy Date: Thu, 27 Jul 2000 16:03:26 -0400 Message-ID: References: <84.89b2ac4.26b1e8fa@cs.com> In-Reply-To: <84.89b2ac4.26b1e8fa@cs.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 QAA22220 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 27 Jul 2000 15:35:22 EDT, Consilgere@cs.com wrote: >Hamilton and Jefferson didn't need to be concerned with the use or >transmission of information. In the past, and frankly until very recently, >what you knew was not as important as what you did. Physical labor was Umm, what about "One if by land; two if by sea?" __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:22:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA22917 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:22:12 -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 QAA22914 for ; Thu, 27 Jul 2000 16:22:11 -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:2.21) with ESMTP id QAA16838 for ; Thu, 27 Jul 2000 16:21:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA25750; Thu, 27 Jul 2000 16:21:40 -0400 (EDT) Date: Thu, 27 Jul 2000 16:21:40 -0400 (EDT) Message-Id: <200007272021.QAA25750@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 25: authorized players, circumvention In-Reply-To: <39807A3B.9B5FDCBD@mninter.net> References: <000501bff7f4$ecfc45a0$87ce0593@ia.nsc.com> <39807A3B.9B5FDCBD@mninter.net> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Chris Moseng writes: > Personally, I think that the document at > http://www.ai.mit.edu/people/rst/dmca/auth/auth.html > written by Robert Thau would be a great start for an amicus brief on > these issues. I would certainly hope that it hasn't been concluded that > DeCSS circumvents, and I think that Mr. Thau's comprehensive analysis > takes the facts as they exist and explains away the lawsuit. Well, I like it. I like it a lot. But I'm biased. If I may be permitted a bit of self-criticism, the treatment of player keys in the encryption section needs to be extended and refined quite a bit, and the discussion of Circuit City Divx also needs to be revised rather drastically in light of later discussion of technical details of that scheme. I'm planning to work on this tonight or tomorrow. Also, it covers only authority issues, and not expressiveness (of code), reverse engineering, etc. But it's certainly a start. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:39:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23492 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:39:25 -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 QAA23489 for ; Thu, 27 Jul 2000 16:39:24 -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:2.21) with ESMTP id QAA18907 for ; Thu, 27 Jul 2000 16:38:54 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id QAA25870; Thu, 27 Jul 2000 16:38:52 -0400 (EDT) Date: Thu, 27 Jul 2000 16:38:52 -0400 (EDT) Message-Id: <200007272038.QAA25870@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] OS protection of hardware in Linux Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Folks here have recently been talking about whether and how an operating system can protect content on DVD media from various kinds of access. Another mailing list, linux-kernel, has touched the same subject, though it came up a somewhat roundabout way. Briefly, the question under debate was whether the OS should allow privileged user code (code running with "administrator" privilege, in windows-speak) to send non-standard commands to disk drives. Andre Hedrick was vociferously arguing that it shouldn't, because there are non-standard commands which will turn many disk drives into the moral equivalent of bricks (by, e.g., erasing the firmware). One response, from Linus ("I'm a dictator") Torvalds, was, in part: Let's take a hypothetial example (you judge on just _how_ hypothetical it actually is): imagine that you have a drive that can be made to refuse to read certain removable media based on where the drive was purchased. Imagine that this was actually done in firmware, and that there was a way of overriding it. Imagine further that you moved, and you wanted to make the drive read certain removable media in the new location, using undocumented commands.. Should the kernel block those commands because it doesn't know what they do? Or should the kernel assume that "Oh, he has the permission to do this, then sure, I'll let him do it..". The case is, of course, not hypothetical at all; it's one we've been discussing for months. The full message is archived at http://kernelnotes.org/lnxlists/linux-kernel/lk_0007_04/msg00300.html for those who'd like to see it in context --- note that the discussion that it is part of has extended under several different subject headings for, I think, over a week at this point. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:45:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23614 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:45:09 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23611 for ; Thu, 27 Jul 2000 16:45:01 -0400 Received: by aero.org id <17118-4>; Thu, 27 Jul 2000 13:44:12 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdUXAa00596; Thu Jul 27 13:43:52 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:40:23 -0700 Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 01:40:22 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 13:43:58 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu My appologies, I shouldn't have used "come out" but "used".....I don't know if they did get spanked for tying to projectors - IANAL. But if they did that would be amusing....I was only extending Bryan's analogy and thought that it that would have been nice to have gotten put in the record. It may be explaining the situation in a fashion that people can understand. "look you don't have to understand the technology. Substitute film for DVD. Substitute projector for player. ...if it's illegal for film and projectors why isn't it illegal for DVDs and players? Bryan Taylor @eon.law.harvard.edu on 07/27/2000 12:56:06 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case --- Michael.A.Rolenz@aero.org wrote: > The Anti-Trust laws apply to monopolies (one company) or any number > that act in a concerted fashion to reduce competition. > > Trust : " a combination of firms or corporations formed by a legal > agreement; especially one that reduces or threatens to to reduce > competition" - Webster's ninth Collegiate Dictionary. I would assume that most quotes from caselaw that limit what a monopoly can do are also directly applicable to trusts. > Your analogy with the movie projectors is VERY VERY apt. What's the > difference between the studios selling 8mm film to me in a special > container box that can only be shown using a special licensed > projector, that they control who gets the license to make, and > that has no other use but to show their special container films. > But also, they want it to be a crime if I cut open the special > container and respool the film onto standard 8mm film reels. I'm still trying to figure out what case it was that spanked the studios for tying to projectors. > Too bad that didn't come out in the trial. It seems like it's all a matter of law. The fundamental facts are undisputed -- the studios, DVD manufacturers, and the DVD-CCA all have contracts that are on record. Actually, the DVD-CCA IS a monopoly, aren't they. If you accept the MPAA's position that the DVD-CCA issues CSS licences as the expression of the access grant, then the DVD-CCA is a single source supplier with the collective market power of all the studios behind them. For example, I can't go negotiate independently with the studios for access to their works the way I can if I'm a theater, because the studios have created an access control trust and embodied it in the form of the DVD-CCA to subordinate the player market the way the have always wanted to subordinate the theater market. In fact, if this case is upheld, why do the studios need the theaters any more? They'd much prefer direct e-commerce of movies to consumers who can play them on their "home theaters" since the DMCA eliminates all antitrust barriers for them, according to Kaplan. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:51:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23732 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:51:27 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23729 for ; Thu, 27 Jul 2000 16:51:25 -0400 Received: by aero.org id <17116-1>; Thu, 27 Jul 2000 13:50:37 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdAAAa10849; Thu Jul 27 13:50:33 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:50:03 -0700 Subject: Re: [dvd-discuss] Facts and Appeals To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 01:50:01 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 13:50:34 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu WRT to Universal vs. Goldstein. There is nothing that can be done until the verdict is given. WRT to DMCA and the MPAA there is a lot. Most of it is being vocal publically. Write your congresscritter. But right now Congress is asking for comments on the DMCA through the commerce department. They are begging for them AND they go into the public record. The DVD CCA, the MPAA will be providing comments. If congress only hears from them, then things are not likely to change. There has been some really good discussion here (and I wish we could blind copy kaplan on all of it!) So...polish your arguments, polish your language, and write (OK type, things can be submitted electronically too). (sorry for being a broken record....for those who have read this before) Paul Hsieh @eon.law.harvard.edu on 07/27/2000 12:58:11 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Facts and Appeals > No they can't send out for more facts. The appellate court can only afirm > or overturn a verdict based upon the record presented to it. Hmmm ... that's a bit of a bummer. So what does that mean in terms of what we can do now? He won't rule until August/September right? > Chris Moseng @eon.law.harvard.edu on 07/26/2000 10PM > Subject: Re: [dvd-discuss] Facts and Appeals > > "James S. Tyre" wrote: > > Appellate Law 101, class is now in session. ;-) > > > > The appellate courts do *not* entertain new facts. Period. End of > > discussion. [1] > > Fair enough, but speaking from my inexperienced shoes, they can send the > parties back to find more facts, or send the case to be heard by another > judge, right? > > That's really what I was driving at. > > Anyway, I don't know where the burden of discovery of facts about the > judge's relation to TW lay. As I stated, I think that the recusal motion > and affadavit put things in Kaplan's lap. He had the option to present > new facts to convince me that he is impartial, but instead he argued it > was irrelevant. It seems weaker to me. > > Always learning, > > -- > moseng@mninter.net > I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:54:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA23827 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:54:46 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA23823 for ; Thu, 27 Jul 2000 16:54:41 -0400 Received: by aero.org id <17127-3>; Thu, 27 Jul 2000 13:54:03 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdHAAa11138; Thu Jul 27 13:53:50 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:53:10 -0700 Subject: Re: [dvd-discuss] Transcript,day 1,p.37: compliant players and copyingtodisk To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 01:53:10 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 13:53:54 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Thanks for the tip....unfortunatly I was using VB (NO FLAMES...I didn't write the program. I was given it. After learning the smattering of VB I needed to make it work and modify it. I quickly got rid of it and everything else associated with VB) Paul Hsieh @eon.law.harvard.edu on 07/27/2000 01:03:08 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript,day 1,p.37: compliant players and copying todisk > I can't speak for Windows98 or 2000 but the advice I got from microsoft on > attempting something like that in Windows95 was "you'd have to write a > virtual device driver [i.e., microsoft speak for assembly language]....I > don't recommend you try that". In Win32 I believe you can just call "EnterCriticalSection(NULL)" or something like that. Any time I've seen this it has been coded in straight C + Win32 API calls. If you were to do this in a ring-0 VDD or WinNT kernel driver, all you would need to do is a "cli / sti" around your code (actually in Win98 you can do this in user mode code, but that's just a defect in the OS architecture.) Anyhow my question really is -- is this a sufficient substitute, or does it provide a way, to guarantee that a region of memory is not paged out to disk? > Paul Hsieh @eon.law.harvard.edu on 07/26/2000 11pm > Subject: Re: [dvd-discuss] Transcript, day 1,p.37: compliant players and > copying to disk > > David Wagner wrote: > > [...] By the way, on many computers, if you don't have enough physical > memory > > (or if you switch tasks to another application while the DVD player is > > running, and that other application uses a fair amount of memory), I'd > > imagine that the unencrypted content could easily be swapped or paged > > out to hard disk, unless the software players take extraordinary measures > > to prevent this. (I know a little about it, because as a cryptographer, > > one has to worry about keys being swapped or paged to disk and staying > > there for a while. Every cryptographer I've spoken says it is hard, if > > not impossible, to reliably prevent this on most Windows platforms.) > > Well, Windows does support the concept of "critical sections" where no task > scheduling or even interrupt processing can occurr. Is that a sufficient > alternative? -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 16:58:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA24102 for dvd-discuss-outgoing; Thu, 27 Jul 2000 16:58:19 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA24099 for ; Thu, 27 Jul 2000 16:58:17 -0400 Received: by aero.org id <17108-6>; Thu, 27 Jul 2000 13:57:09 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdBCAa11138; Thu Jul 27 13:56:24 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 13:55:52 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 01:55:51 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 13:56:28 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu While Hamilton and Jefferson "didn't need to be concerned with the use or transmission of information", they certainly seem to be concerned with it and spend a lot of time considering what became the patent and copyright system. They also spent a lot of time writing about it or encrypting it.....Now that's an interesting coincidence...Jefferson invented a cryptosystem and sent coded letters....too bad the defense couldn't get him on the witness stand. Ron Gustavson @eon.law.harvard.edu on 07/27/2000 01:14:34 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy On Thu, 27 Jul 2000 15:35:22 EDT, Consilgere@cs.com wrote: >Hamilton and Jefferson didn't need to be concerned with the use or >transmission of information. In the past, and frankly until very recently, >what you knew was not as important as what you did. Physical labor was Umm, what about "One if by land; two if by sea?" __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 17:30:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA26251 for dvd-discuss-outgoing; Thu, 27 Jul 2000 17:30:49 -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 RAA26248 for ; Thu, 27 Jul 2000 17:30:48 -0400 Received: from localhost (cpt@localhost) by gryphon.auspice.net (8.9.3/8.9.3) with ESMTP id RAA18366 for ; Thu, 27 Jul 2000 17:03:38 -0400 Date: Thu, 27 Jul 2000 17:03:37 -0400 (EDT) From: Joshua Stratton To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy 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 Ship's rutters (the book describing safe routes, harbors, etc.) were prized posessions for a couple of centuries IIRC. Stealing one was as big a coup as grabbing codebooks would be during WWII. And of course, copies were just as valuable; no one really cared about the book as much as what was in it. On Thu, 27 Jul 2000, Ron Gustavson wrote: > On Thu, 27 Jul 2000 15:35:22 EDT, Consilgere@cs.com wrote: > > >Hamilton and Jefferson didn't need to be concerned with the use or > >transmission of information. In the past, and frankly until very recently, > >what you knew was not as important as what you did. Physical labor was > > Umm, what about "One if by land; two if by sea?" > > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:04:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28622 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:04:10 -0400 Received: from dial215.roadrunner.com (sf-du215.cybermesa.com [209.12.75.215]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28619 for ; Thu, 27 Jul 2000 18:04:07 -0400 Received: (from paul@localhost) by dial215.roadrunner.com (8.8.7/8.8.7) id QAA02751 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 16:04:39 -0600 Date: Thu, 27 Jul 2000 16:04:38 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.73: Chain of custody Message-ID: <20000727160437.A2655@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 Day 1, p. 71, Shamos: 1 Q. What does the session start time reflect? 2 A. Let me explain how it works. Initially when one goes into 3 a chat room, that gives many people on the Internet the 4 ability to simultaneously communicate with one another. 5 Once two of them decide they would like to continue 6 an interaction privately, that's what "session start" 7 indicates. So, the session started when my assistant Eric, [ ... ] p. 73 16 THE COURT: I understand. It's chain of custody 17 evidence in the electronic era. Gag. Based on this one submission it would be impossible to detect a careful forgery. At a minimum, records from some other entity would have to be matched by time and IP number to provide any real possibility of detecting fraud. Service provider records, etc. might suffice. I can't give a careful listing of what would be required 'cause I haven't thought it out, and I don't know enough of the details. What the P's have done just doesn't cut it for the long run. This isn't really different from saying, "trust me". p. 74 5 Q. Why is it that the session log maintained on the computer 6 omits that portion? 7 A. Well, this is a log feature of Internet relay chat. It 8 records this log separate. Why did you buy fish for dinner? Because I was on my bicycle. What is the "feature"? That your implementation of irc truncates log files to a fixed size? Or that you and your assistant failed to adjust some optional parameter that sets the log-file length? Please say so if that is the case. Either way, there is no complete log to establish custody? Is that what you are saying? 9 Q. And what was the line preceding what is represented here 10 which led eaRoSoL to participate in the conversation, which 11 prompted eaRoSoL to participate in a conversation? 12 A. Yes. In my declaration, since the dialog appears to begin 13 in the middle of nowhere, with this person eaRoSoL suddenly 14 showing up and saying, sure, etc., it appears to be in 15 response to a question. I thought that for counsel and the 16 Court, that log itself would be confusing, so I asked Eric 17 what was the line immediately preceding the initiation of the 18 private chat that would lead eaRoSoL to say "sure." And that 19 line was "Anyone have any DiVXs to trade for Sleepless in 20 Seattle?" So, starting with the already truncated log file, you further modified the transcript as recorded on hard disk? How long did you wait to make these further modifications to the truncated log-file? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:22:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA28906 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:22:35 -0400 Received: from dial140.roadrunner.com (sf-du140.cybermesa.com [209.12.75.140]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA28903 for ; Thu, 27 Jul 2000 18:22:31 -0400 Received: (from paul@localhost) by dial140.roadrunner.com (8.8.7/8.8.7) id QAA02907 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 16:23:04 -0600 Date: Thu, 27 Jul 2000 16:23:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.78: surmising technical parameters Message-ID: <20000727162303.A2813@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 Day 1, p. 78, Shamos: 1 A. Well, we better be specific about what technical 2 parameters we are talking about. If you are talking about the 3 bandwidth available to eaRoSoL, then we can only surmise. No need to surmise, the service provider knows. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:29:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA29784 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:29:19 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA29781 for ; Thu, 27 Jul 2000 18:29:17 -0400 Received: from ppp.anonymizer.com (c04-058.015.popsite.net [64.24.75.58]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id PAA01908 for ; Thu, 27 Jul 2000 15:30:56 -0700 (PDT) Message-Id: <4.3.2.7.2.20000727150122.00aa7330@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Thu, 27 Jul 2000 15:29:54 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case In-Reply-To: <20000727174939.17584.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 A general note about antitrust law - I raise it for consideration, with no conclusions drawn, since it is not my field of expertise. A threshold issue in antitrust cases is the definition of the relevant market, since there can be no antitrust violation unless (among other things) there is an adverse effect on competition in the market, as defined. Many antitrust cases are won or lost on this threshold issue, before ever getting into the specific behaviour which allegedly was anticompetitive. For a good example, see the USSC decision in Jefferson Parish v. Hyde (which, I vaguely recall, may have been mentioned on this list before). http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=466&invol=2 [The case is near and dear to my heart. I wasn't involved in it, I'm in L.A., not LA, but the type of contracting arrangement at issue in the case was more or less created by another attorney and me in the late seventies.] The question becomes, what is the relevant market, as applied to DVD movies? Is it just DVD? Is it all forms of distribution of films, including theatres, VHS tapes, etc? I'm sufficiently distracted by other things that I haven't thought through what the proper definition of market should be (according to the courts), but it is something to be considered for those interested in the antitrust angle. -------------------------------------------------------------------- James S. Tyre mailto:j.s.tyre@cyberpass.net Bigelow, Moore & Tyre, LLP 626-792-6806/626-792-1402(fax) 540 South Marengo Avenue Pasadena, California 91101 Co-founder, The Censorware Project http://censorware.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:33:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30200 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:33:52 -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 SAA30197 for ; Thu, 27 Jul 2000 18:33:50 -0400 Message-ID: <20000727223249.27201.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Thu, 27 Jul 2000 15:32:49 PDT Date: Thu, 27 Jul 2000 15:32:49 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case [and Lasercomb] 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 --- Ole Craig wrote: > As I understand it, one of the reasons antitrust is difficult > to bring in is that antitrust law is a basis for suit, not a defense > to one. IOW, we (meaning the open-source community, potential DVD > player manufacturers, and DVD consumers in general) are certainly > within our rights to bring a (class-action?) lawsuit alleging > anticompetitive tying and/or misuse of copyright on the part of the > DVDCCA and the MPAA member studios.. but until and unless such a > lawsuit is decided in our favor, the fact that we feel that this is > what's going on does not in and of itself constitute a defense to > claims brought under a different section of the law. This is why > Kaplan could declare that antitrust issues were not a concern, and > why the plaintiffs had so many relevancy objections sustained when > defense went there. I am delighted to disagree (and offer citation). Anticompetitive acts absolutely are a defense to intellectual property claims. In fact, it is EASIER to use them as a defense in IP cases than it is to show antitrust claims directly. This is exactly what "misuse" of IP is -- a defense to IP claims. A fantastic dissertation on misuse of IP (both patent and copyright) is provided by Lasercomb v Reynolds, which quotes heavily from the Supreme Court in Morton Salt as well as a host of other cases. Below is a select quote on the issue you spoke of. ______________________ Lasercomb v Reynolds No. 89-3245, 911 F.2d 970 (4th Cir. 1990) http://bioinformatics.ucsf.edu/bwtaylor/dvd/cases/Lasercomb_v_Reynolds.html A patent or copyright is often regarded as a limited monopoly -- an exception to the general public policy against restraints of trade. Since antitrust law is the statutory embodiment of that public policy, there is an understandable association of antitrust law with the misuse defense. Certainly, an entity which uses its patent as the means of violating antitrust law is subject to a misuse of patent defense. However, Morton Salt held that it is not necessary to prove an antitrust violation in order to successfully assert patent misuse: "It is unnecessary to decide whether respondent has violated the Clayton Act, for we conclude that in any event the maintenance of the present suit to restrain petitioner's manufacture or sale of the alleged infringing machines is contrary to public policy and that the district court rightly dismissed the complaint for want of equity." 314 U.S. at 494. See also Hensley Equip. Co. v. Esco Corp., 383 F.2d 252, 261 & n. 19, amended on reh'g, 386 F.2d 442 (5th Cir. 1967); 8 Walker on Patents, at § 28:33. So while it is true that the attempted use of a copyright to violate antitrust law probably would give rise to a misuse of copyright defense, the converse is not necessarily true -- a misuse need not be a violation of antitrust law in order to comprise an equitable defense to an infringement action. The question is not whether the copyright is being used in a manner violative of antitrust law (such as whether the licensing agreement is "reasonable"), but whether the copyright is being used in a manner violative of the public policy embodied in the grant of a copyright. ______________________ __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:40:57 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30912 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:40:57 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30909 for ; Thu, 27 Jul 2000 18:40:55 -0400 Received: by aero.org id <17091-6>; Thu, 27 Jul 2000 15:40:14 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdFFAa18389; Thu Jul 27 15:40:05 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 15:37:26 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/27/2000 03:37:25 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Thu, 27 Jul 2000 15:40:12 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Good Point. I keep wanting someone to tell me just what's so different today? Trade Secrets, patents, copyright. They were good ideas 200+ years ago. They are still good ideas. The problem is not that the reasons for having them have gone away. The problem is how they are being used today. As far as I'm concerned, trade secrets deserve no protection under the law except to the extent that you can DEMONSTRATE beyond a reasonable doubt that they were obtained using illegal means (e.g., a police investigation shows that someone blew open the bank vault and safety deposit boxes ) or that they violate legal contracts that are specific about what is being protected (i.e., rubberstamping proprietary doesn't make it so)..... If the keepers of the Coca-Cola recipe leave it out and I find it on the street, that's their problem. I shouldn't have to prove that I found it, they have to prove that I didn't. Patents should be for a reasonable time (20 yrs is OK) but must not be granted for ideas, concepts, trivialities, the obvious, or the stupid. Rather than loosening the patent laws in 1986, I think they should have tightened them up. Given the nonsense getting patented these days (e.g., Starbucks cardboard coffee sleeves!), I think the public should be allowed to challenge the validity of patents without fee. Copyrights - lets get the term back to something that protects the creator but not endows this descendants or a corporation with a monopoly for 100 yrs. BTW - What you do is still more important than what your know. The fact that what you are doing today is not the same as what you might have been doing 200 yrs ago is quite irrelevant. Thomas Jefferson, Abraham Lincoln, Benjamin Franklin are not known for their physical labors (except maybe Franklin). Joshua Stratton @eon.law.harvard.edu on 07/27/2000 02:31:38 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy Ship's rutters (the book describing safe routes, harbors, etc.) were prized posessions for a couple of centuries IIRC. Stealing one was as big a coup as grabbing codebooks would be during WWII. And of course, copies were just as valuable; no one really cared about the book as much as what was in it. On Thu, 27 Jul 2000, Ron Gustavson wrote: > On Thu, 27 Jul 2000 15:35:22 EDT, Consilgere@cs.com wrote: > > >Hamilton and Jefferson didn't need to be concerned with the use or > >transmission of information. In the past, and frankly until very recently, > >what you knew was not as important as what you did. Physical labor was > > Umm, what about "One if by land; two if by sea?" > > > __________no-∞-do__________ > From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:41:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA30920 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:41:08 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA30917 for ; Thu, 27 Jul 2000 18:41:06 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id SAA02012 for ; Thu, 27 Jul 2000 18:40:36 -0400 Date: Thu, 27 Jul 2000 18:40:36 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case [and Lasercomb] In-Reply-To: <20000727223249.27201.qmail@web515.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 07/27/00 at 15:32, 'twas brillig and Bryan Taylor scrobe: > --- Ole Craig wrote: > > As I understand it, one of the reasons antitrust is difficult > > to bring in is that antitrust law is a basis for suit, not a defense > > to one. IOW, we (meaning the open-source community, potential DVD > > player manufacturers, and DVD consumers in general) are certainly > > within our rights to bring a (class-action?) lawsuit alleging > > anticompetitive tying and/or misuse of copyright on the part of the > > DVDCCA and the MPAA member studios.. but until and unless such a > > lawsuit is decided in our favor, the fact that we feel that this is > > what's going on does not in and of itself constitute a defense to > > claims brought under a different section of the law. This is why > > Kaplan could declare that antitrust issues were not a concern, and > > why the plaintiffs had so many relevancy objections sustained when > > defense went there. > > I am delighted to disagree (and offer citation). Anticompetitive acts > absolutely are a defense to intellectual property claims. In fact, it > is EASIER to use them as a defense in IP cases than it is to show > antitrust claims directly. This is exactly what "misuse" of IP is -- a > defense to IP claims. Excellent! I am oh-so-happy to be proven wrong. :-) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:44:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA31072 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:44:19 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA31069 for ; Thu, 27 Jul 2000 18:44:07 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA15123 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 18:47:16 -0400 Date: Thu, 27 Jul 2000 18:47:10 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000727184710.E14138@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from olc@cs.umass.edu on Thu, Jul 27, 2000 at 03:53:45PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 03:53:45PM -0400, Ole Craig wrote: > ... > As I understand it, one of the reasons antitrust is difficult > to bring in is that antitrust law is a basis for suit, not a defense > to one. IOW, we (meaning the open-source community, potential DVD > player manufacturers, and DVD consumers in general) are certainly > within our rights to bring a (class-action?) lawsuit alleging > anticompetitive tying and/or misuse of copyright on the part of the > DVDCCA and the MPAA member studios.. but until and unless such a > lawsuit is decided in our favor, the fact that we feel that this is > what's going on does not in and of itself constitute a defense to > claims brought under a different section of the law. This is why > Kaplan could declare that antitrust issues were not a concern, and why > the plaintiffs had so many relevancy objections sustained when defense > went there. In the Sony v Universal Studios suit, or Kodak v Polaroid, did each party sue each other, and the suits were joined? So it is too late to sue, in order to have them joined, but we don't have to wait until one suit is over to sue the other party? From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:52:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01183 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:52:08 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01175 for ; Thu, 27 Jul 2000 18:51:56 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id SAA15138 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 18:55:07 -0400 Date: Thu, 27 Jul 2000 18:55:02 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000727185502.F14138@eldritchpress.org> References: <20000727195349.14317.qmail@web514.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000727195349.14317.qmail@web514.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Jul 27, 2000 at 12:53:49PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 12:53:49PM -0700, Bryan Taylor wrote: >... > Actually, the DVD-CCA IS a monopoly, aren't they. If you accept the > MPAA's position that the DVD-CCA issues CSS licences as the expression > of the access grant, then the DVD-CCA is a single source supplier with > the collective market power of all the studios behind them. For > example, I can't go negotiate independently with the studios for access > to their works the way I can if I'm a theater, because the studios have > created an access control trust and embodied it in the form of the > DVD-CCA to subordinate the player market the way the have always wanted > to subordinate the theater market. It should be clear from the testimony in this case already that the studios would never have released their "crown jewels" in any form without their having set up the DVD-CCA to control everything. I believe orginally the CSS was administered by Matushita. But you can see this suit was not brought by Matushita nor the DVD-CCA, but rather the studios themselves. > In fact, if this case is upheld, why do the studios need the theaters > any more? They'd much prefer direct e-commerce of movies to consumers > who can play them on their "home theaters" since the DMCA eliminates > all antitrust barriers for them, according to Kaplan. There is a similar situation with digital projection of digital movies in theatres. Last I read about it, there were two competing technologies. One of them would keep the movies in the hands of the studios and allow them to rent the projector equipment to the theatres. That way they wouldn't force the theatre owners to invest in new capital equipment all at once. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 18:58:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA01953 for dvd-discuss-outgoing; Thu, 27 Jul 2000 18:58:03 -0400 Received: from dial180.roadrunner.com (dial180.cybermesa.com [209.12.75.180] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA01950 for ; Thu, 27 Jul 2000 18:57:59 -0400 Received: (from paul@localhost) by dial180.roadrunner.com (8.8.7/8.8.7) id QAA03244 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 16:58:33 -0600 Date: Thu, 27 Jul 2000 16:58:31 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Trial, day 1, p.98: "optimal" networking Message-ID: <20000727165831.A3157@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 Day 1, p. 96, Shamos: 24 Q. Now, do you believe the result of that test reflects 25 practical and not merely theoretical results? p. 97 1 A. Yes, at that rate we were getting approximately a third of 2 the available bandwidth. We were getting nowhere near 100 3 percent of it. 4 Q. To what extent? 5 THE COURT: I don't understand your answer. 6 THE WITNESS: Well, if conditions had been perfect, 7 and there had been no one else on the network, we might have 8 been able to achieve triple the speed, so it would have taken 9 under seven minutes instead of 20. But because we made no 10 effort to try to achieve perfect conditions but just use the Nope. Overhead exists. One never gets 100%. From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 19:02:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02149 for dvd-discuss-outgoing; Thu, 27 Jul 2000 19:02:19 -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 TAA02146 for ; Thu, 27 Jul 2000 19:02:18 -0400 Received: from ip22.bedford9.ma.pub-ip.psi.net ([38.32.79.22]) by relay20.smtp.psi.net with smtp (Exim 3.13 #3) id 13Hwex-0004x9-00 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 19:01:47 -0400 From: Ron Gustavson To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Trial, day 1, p.73: Chain of custody Date: Thu, 27 Jul 2000 18:55:35 -0400 Message-ID: <8ef1osk138rb5fbs34a51hqrh1kllj623s@4ax.com> References: <20000727160437.A2655@localhost> In-Reply-To: <20000727160437.A2655@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 TAA02147 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 27 Jul 2000 16:04:38 -0600, Paul Fenimore wrote: > 5 Q. Why is it that the session log maintained on the computer > 6 omits that portion? > 7 A. Well, this is a log feature of Internet relay chat. It > 8 records this log separate. > >Why did you buy fish for dinner? > >Because I was on my bicycle. > >What is the "feature"? That your implementation of irc truncates log >files to a fixed size? Or that you and your assistant failed to adjust >some optional parameter that sets the log-file length? Please say >so if that is the case. Either way, there is no complete log >to establish custody? Is that what you are saying? All they had to do in mIRC was go File/Options/Logging/ and check both Channels and Private Chats. If I was getting paid the big bucks, that's what I would have done. Anybody want to go look for eaRoSoL? He might have something interesting to say about the whole matter. __________no-∞-do__________ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 19:07:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02222 for dvd-discuss-outgoing; Thu, 27 Jul 2000 19:07:26 -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 TAA02219 for ; Thu, 27 Jul 2000 19:07:26 -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:2.21) with ESMTP id TAA04699 for ; Thu, 27 Jul 2000 19:06:55 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA26419; Thu, 27 Jul 2000 19:06:54 -0400 (EDT) Date: Thu, 27 Jul 2000 19:06:54 -0400 (EDT) Message-Id: <200007272306.TAA26419@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case In-Reply-To: <4.3.2.7.2.20000727150122.00aa7330@127.0.0.1> References: <20000727174939.17584.qmail@web513.mail.yahoo.com> <4.3.2.7.2.20000727150122.00aa7330@127.0.0.1> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu James S. Tyre writes: > The question becomes, what is the relevant market, as applied to DVD > movies? Is it just DVD? Is it all forms of distribution of films, > including theatres, VHS tapes, etc? Well, the plaintiffs in New York want to enjoin the distribution of (among other things) the CSS implementation in the LiViD DVD player. So, the affected market would include DVD players, both hardware and software, and multipurpose devices like laptops which are capable of playing DVDs. The P's could try to widen it to include players for other media formats (VHS, Betamax), set-top cable boxes, RealMedia software, etc. But I can't see how it would include the media themselves. (FWIW, the "extra features" on DVDs of many movie titles often include a great deal of content which is unavailable in other formats; if you want access to that content, a DVD player is the only way you can get it. To that extent, at least, the market is for DVD players alone). rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 19:14:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02353 for dvd-discuss-outgoing; Thu, 27 Jul 2000 19:14:02 -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 TAA02349 for ; Thu, 27 Jul 2000 19:14:00 -0400 Received: (from eds@localhost) by thud.reric.net (8.9.3/8.8.7) id SAA08056 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 18:13:28 -0500 Date: Thu, 27 Jul 2000 18:13:28 -0500 From: Eric Seppanen To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000727181328.A8017@thud.reric.net> Mail-Followup-To: dvd-discuss@eon.law.harvard.edu References: <20000727195349.14317.qmail@web514.mail.yahoo.com> <20000727185502.F14138@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1us In-Reply-To: <20000727185502.F14138@eldritchpress.org>; from eldred@eldritchpress.org on Thu, Jul 27, 2000 at 06:55:02PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 06:55:02PM -0400, Eric Eldred wrote: > On Thu, Jul 27, 2000 at 12:53:49PM -0700, Bryan Taylor wrote: > >... > > Actually, the DVD-CCA IS a monopoly, aren't they. If you accept the > > MPAA's position that the DVD-CCA issues CSS licences as the expression > > of the access grant, then the DVD-CCA is a single source supplier with > > the collective market power of all the studios behind them. > > It should be clear from the testimony in this case > already that the studios would never have released > their "crown jewels" in any form without their having > set up the DVD-CCA to control everything. I believe > orginally the CSS was administered by Matushita. But > you can see this suit was not brought by Matushita > nor the DVD-CCA, but rather the studios themselves. But isn't it obvious that DVD-CCA is acting in the studio's interests by setting up the licensing regime in a way that appeases DVD-CCA? Doesn't it seem likely that DVD-CCA has signed a contract of some type assuring the studios that the licensing requirements will satisfy certain requirements? Even if they didn't, it seems obvious that MPAA and DVD-CCA together form a trust that is obstructing competition in the DVD player market by preventing certain user-friendly features (IANAL). DVD-CCA will only license CSS under unfriendly terms; and MPAA sues under 17 USC 1201 if anyone reverse-engineers the technology. They're obviously in collusion. It seems to me that the DVD-CCA/MPAA trust is abusing what is effectively "joint" intellectual property (joint because DVD-CCA licenses it but only MPAA can enforce it). Imagine that MPAA were licensing it rather than DVD-CCA, and it's easy to imagine antitrust arguments... is the situation different just because DVD-CCA tries to appear independent from the MPAA? If they were really independent, why not let licensees, say, fast-forward through opening commercials? They seem to be acting in MPAA's best interests rather than their own, which seems suspicious. Eric From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 19:16:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02409 for dvd-discuss-outgoing; Thu, 27 Jul 2000 19:16:19 -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 TAA02406 for ; Thu, 27 Jul 2000 19:16:18 -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 TAA16955 for ; Thu, 27 Jul 2000 19:15:47 -0400 (EDT) Message-Id: <4.2.2.20000727191206.028c9870@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 27 Jul 2000 19:15:57 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Trial, day 1, p.73: Chain of custody In-Reply-To: <8ef1osk138rb5fbs34a51hqrh1kllj623s@4ax.com> References: <20000727160437.A2655@localhost> <20000727160437.A2655@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 06:55 PM 7/27/00 -0400, Ron Gustavson wrote: >On Thu, 27 Jul 2000 16:04:38 -0600, Paul Fenimore wrote: > >What is the "feature"? That your implementation of irc truncates log > >files to a fixed size? Or that you and your assistant failed to adjust > >some optional parameter that sets the log-file length? Please say > >so if that is the case. Either way, there is no complete log > >to establish custody? Is that what you are saying? > >All they had to do in mIRC was go File/Options/Logging/ and check both >Channels and Private Chats. If I was getting paid the big bucks, that's >what I would have done. But that would have run the risk of showing how long vaioboy had to wait after sending out the request for someone to offer to trade a DivX with him, or how many futile attempts he made before entrapping a trading partner. >Anybody want to go look for eaRoSoL? He might have something interesting >to say about the whole matter. Or aERoSoL, as someone suggested it was spelled in the court exhibits. 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 Jul 27 19:27:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA02651 for dvd-discuss-outgoing; Thu, 27 Jul 2000 19:27:11 -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 TAA02644 for ; Thu, 27 Jul 2000 19:27:09 -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 TAA08977; Thu, 27 Jul 2000 19:26:16 -0400 Message-Id: <200007272326.TAA08977@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu, "Gino J. Scarselli" , Lee Tien , Cindy Cohn , junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-reply-to: Your message of "Thu, 27 Jul 2000 08:22:39 PDT." <5A8391CA2D9ED311AFAA080009D982B10B1D4F@mail2.onetouch.com> Date: Thu, 27 Jul 2000 19:25:46 -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: : I personally feel that the free speech protection has : been applied to code by the courts due to a fundamental : misunderstanding of the nature of computers. However, : it has been applied and we should by all means try to : continue to defend the results of this misunderstanding. Consider code written on a yellow pad, which is where most of the code I wrote in the eighties (which wasn't much) started out or the code written on a punched card that is reproduced in Breyer's article on copyright law in the Harvard Law Review which was published before the 1976 Copyright Act (Stephen Breyer, The Uneasy Case for Copyright, 84 Harv. L. Rev. 281 (1970).) : : Touretzky did a good job of stretching the free speech : umbrella from source code to cover object code as well. : Wonderfully argued. : : I do not think, though, that you could then get the courts : to buy extending it the next step to cover hardware that : does the same job as software. To the courts, if it's : hardware it's an invention, a material object. Software : is something nebulous to them, so it became "speech" and : got protected. But hardware is physical. Unless you could : start comparing it to sculpture (protected as artistic : expression) I don't think you'd get anyware trying to : class a hardware TPM as speech just so that you could : create the conflict between circumventing a TPM under : 1201 vs. free speech. Hardware---e.g., the boxes from which one buys newspapers---has been held to be protected by the First Amendment. But it isn't protected as a text, but rather as something that is used in speaking or publishing. On the other hand, recognizing that software is a writing, a text, a ``work'' as that term is used in the Copyright Act, is not a misunderstanding of the nature of computers. When a program is loaded into a computer, the computer is rewired, and that rewired computer obviously is not a text. But the wiring diagram or the instructions and statesments that comprise the program remain a text---a work---whose communication, expression, and publishing remain protected by the First Amendment. It is I fear you who are confused. After all Touretzky demonstrated quite conclusively that any precise statement---at least one that can be represented mathematically---is or can become a computer program (all one needs is the appropriate compiler). If you were right, no precise statement would be entitled to the protection of the First Amendent, nor would it be copyrightable. (And think about a program written in prolog, which is just a collection of statements like ``John loves Mary'' and ``Mary loves anyone who loves Mary'' and questions like ``does Mary love John?'') -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 20:01:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA03939 for dvd-discuss-outgoing; Thu, 27 Jul 2000 20:01:42 -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 UAA03936 for ; Thu, 27 Jul 2000 20:01:40 -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 UAA22786; Thu, 27 Jul 2000 20:01:07 -0400 (EDT) Message-Id: <4.2.2.20000726103434.026d5c10@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Thu, 27 Jul 2000 20:01:17 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Cc: "Gino J. Scarselli" , Lee Tien , Cindy Cohn , junger@samsara.law.cwru.edu In-Reply-To: <200007261416.KAA03028@samsara.law.cwru.edu> 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 At 10:16 AM 7/26/00 -0400, Peter D. Junger wrote: >I have not seen the judges remarks. I would like to point out, however, >that if O'Brien is applicable, then the problem is changed to intermediate >scrutiny and the burden of upholding the regulation, which is on the >plaintiffs, is not as great as it is in a pure speech case. But the >burden is still there, which stongly suggests that 1201(a)(2) should be >construed, if possible, so as to avoid the issue. One possible reading >would be that the section applies to ``black boxes'' not to software. I sensed that Kaplan was struggling for a (less-protected) pigeonhole into which to fit code-as-speech. If not "expressive conduct" or "incitement," then perhaps something sui generis for computer programs that enable use of copyrighted works/circumvent access controls. I think the defense will urge him (as one alternative) to avoid the issue by restricting 1201(a) to devices, but they'd also prefer not to leave behind oppressive "access control" measures that can be bypassed only by hardware modifications. It would be odd if the First Amendment consideration of the DeCSS program short-circuited argument against 1201's paracopyright restrictions. Or perhaps the joint force of First Amendment interests in the code and in the fair use which it enables will be enough to strike 1201(a). >I do not, however, see how O'Brien can be applied to software. In >O'Brien you had the physical burning of the draft card, an act that >would normally not be seen as speech of any kind, but which was used >to express a point of view. In the case of publishing software, however, >all there is the expression of information, the publication of the work, >and there is no tangible act like burning a floppy disk that contains >a copy of the software. And it's the information itself that 1201(a)(2) attempts to ban, if the program is a precise enough description of the operation of the access control measure to enable its "circumvention." >The trouble is that there are lots of quotes from lower court cases >relying on O'Brien that sound very bad when taken out of context---the >context, more often than not being some sort of land use regulation. I >think that they can all be explained away as ``time, place, and manner'' >cases. > >I am sending a copy of this message to the lawyers for Bernstein and >Junger who have had to become experts on O'Brien and how it applies >to software. They should be able to supply some hints and perhaps >a cite or two as to how to deal with )'Brien. I'm sure any tips would be much-appreciated. --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 Thu Jul 27 21:21:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA15432 for dvd-discuss-outgoing; Thu, 27 Jul 2000 21:21:32 -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 VAA15429 for ; Thu, 27 Jul 2000 21:21:29 -0400 Message-ID: <20000728012029.2399.qmail@web511.mail.yahoo.com> Received: from [64.81.25.37] by web511.mail.yahoo.com; Thu, 27 Jul 2000 18:20:29 PDT Date: Thu, 27 Jul 2000 18:20:29 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Source code versus Object Code (executable) 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: > Consider code written on a yellow pad, which is where most of the > code I wrote in the eighties (which wasn't much) started out > or the code written on a punched card that is reproduced in Breyer's > article on copyright law in the Harvard Law Review which was > published before the 1976 Copyright Act (Stephen Breyer, The Uneasy > Case for Copyright, 84 Harv. L. Rev. 281 (1970).) Just out of curiosity, what was the thesis of Breyer's article? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 21:43:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA16965 for dvd-discuss-outgoing; Thu, 27 Jul 2000 21:43:38 -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 VAA16962 for ; Thu, 27 Jul 2000 21:43:36 -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 VAA09480; Thu, 27 Jul 2000 21:42:44 -0400 Message-Id: <200007280142.VAA09480@samsara.law.cwru.edu> To: dvd-discuss@eon.law.harvard.edu cc: junger@samsara.law.cwru.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) In-reply-to: Your message of "Thu, 27 Jul 2000 18:20:29 PDT." <20000728012029.2399.qmail@web511.mail.yahoo.com> Date: Thu, 27 Jul 2000 21:42:14 -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: : : --- "Peter D. Junger" wrote: : : > Consider code written on a yellow pad, which is where most of the : > code I wrote in the eighties (which wasn't much) started out : > or the code written on a punched card that is reproduced in Breyer's : > article on copyright law in the Harvard Law Review which was : > published before the 1976 Copyright Act (Stephen Breyer, The Uneasy : > Case for Copyright, 84 Harv. L. Rev. 281 (1970).) : : Just out of curiosity, what was the thesis of Breyer's article? It was an effort at economic analysis. His conclusion was that there isn't that much to be said in favor of copyright law in general, and in the case I am most interested in that there is very little to be said for copyright law as applied to computer programs. There is hardly any law in the article, but it is that rare thing, a sensible economic analysis done by a law professor. It got Breyer tenure at Harvard, and that lead to his current position as a Supreme Court Justice. The article is too early to be available in Lexis or Westlaw and so it is forgotten pretty much. But if the the 2600 case goes to the Supreme Court, counsel should read it. I think that it would be a real service to the cause if one could get it reprinted in digital form. I think it does a good job of revealing how silly economic arguments of the sort made by the MPAA actually are. -- Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH EMAIL: junger@samsara.law.cwru.edu URL: http://samsara.law.cwru.edu NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 21:44:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17009 for dvd-discuss-outgoing; Thu, 27 Jul 2000 21:44:28 -0400 Received: from dial147.roadrunner.com (sf-du147.cybermesa.com [209.12.75.147]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA16998 for ; Thu, 27 Jul 2000 21:44:25 -0400 Received: (from paul@localhost) by dial147.roadrunner.com (8.8.7/8.8.7) id TAA03561 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 19:44:56 -0600 Date: Thu, 27 Jul 2000 19:44:55 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000727194455.B3157@localhost> References: <200007261416.KAA03028@samsara.law.cwru.edu> <4.2.2.20000726103434.026d5c10@pop.bellatlantic.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <4.2.2.20000726103434.026d5c10@pop.bellatlantic.net>; from wendy@seltzer.com on Thu, Jul 27, 2000 at 08:01:17PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 08:01:17PM -0400, Wendy Seltzer wrote: > At 10:16 AM 7/26/00 -0400, Peter D. Junger wrote: > >I have not seen the judges remarks. I would like to point out, however, > >that if O'Brien is applicable, then the problem is changed to intermediate > >scrutiny and the burden of upholding the regulation, which is on the > >plaintiffs, is not as great as it is in a pure speech case. But the > >burden is still there, which stongly suggests that 1201(a)(2) should be > >construed, if possible, so as to avoid the issue. One possible reading > >would be that the section applies to ``black boxes'' not to software. > > I sensed that Kaplan was struggling for a (less-protected) pigeonhole into > which to fit code-as-speech. If not "expressive conduct" or "incitement," > then perhaps something sui generis for computer programs that enable use of > copyrighted works/circumvent access controls. > > I think the defense will urge him (as one alternative) to avoid the issue > by restricting 1201(a) to devices, but they'd also prefer not to leave > behind oppressive "access control" measures that can be bypassed only by > hardware modifications. It would be odd if the First Amendment > consideration of the DeCSS program short-circuited argument against 1201's > paracopyright restrictions. Or perhaps the joint force of First Amendment > interests in the code and in the fair use which it enables will be enough > to strike 1201(a). If the cryptography were functional instead of pretextual, everyone would get a different crypto key, and the key would contain all the "trust". Dissemination of the program would have no effect on solving a somewhat unusual instance derived from the privacy problem. (i.e. anyone could get the work, but by encrypting each transmission, transmission over a public network would not risk the copyright owner's financial compensation.) There would rarely be a sensible argument to ever keep the program secret. Of course, in this reading, the P's suit is out on its ear because it doesn't protected "commercial access", nor does the crypto isn't attempting to solve any problem crypto is capable of solving. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 21:58:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA17835 for dvd-discuss-outgoing; Thu, 27 Jul 2000 21:58:27 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA17831 for ; Thu, 27 Jul 2000 21:58:24 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id TAA28152 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 19:08:08 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Date: Thu, 27 Jul 2000 19:06:52 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: <4.2.2.20000726103434.026d5c10@pop.bellatlantic.net> <20000727194455.B3157@localhost> In-Reply-To: <20000727194455.B3157@localhost> MIME-Version: 1.0 Message-Id: <0007271908051K.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, 27 Jul 2000, Paul Fenimore wrote: > Of course, in this reading, the P's suit is out on its ear because > it doesn't protected "commercial access", nor does the crypto isn't > attempting to solve any problem crypto is capable of solving. > Sorry to nitpick, but what does this mean? This is probably the most amusing sentence structure I've ever seen. ;-) as one lawyer said: "Objection! That sentence should be taken out and shot!" --Russell > > Paul Fenimore -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 22:00:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18095 for dvd-discuss-outgoing; Thu, 27 Jul 2000 22:00:36 -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 WAA18092 for ; Thu, 27 Jul 2000 22:00:35 -0400 Message-ID: <20000728015934.19930.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 27 Jul 2000 18:59:34 PDT Date: Thu, 27 Jul 2000 18:59:34 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) 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 1201(c)(2) says explicitly that section 1201 was not intended to broaden contributory or vicarious copyright liability: 1201(c)(2) "Nothing in this section shall enlarge or diminish vicarious or contributory liability for copyright infringement in connection with any technology, product, service, device, component, or part thereof." This whole issue of "prove that DeCSS isn't causing the piracy" is silly. If it has legitimate uses, then 1201(c)(2) + Sony Betamax immunize it from this. The same language is basically built into 1201(a)(2)(B): "has only limited commercially significant purpose or use other than to circumvent". This is really the same as the test in Betamax. One thing that was clear from the trial was that DeCSS served to communicate the methods needed to allow interoperability of Linux with DVD's and their related programs. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 22:01:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA18496 for dvd-discuss-outgoing; Thu, 27 Jul 2000 22:01:55 -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 WAA18493 for ; Thu, 27 Jul 2000 22:01:54 -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:2.21) with ESMTP id WAA17514 for ; Thu, 27 Jul 2000 22:01:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id WAA26986; Thu, 27 Jul 2000 22:01:22 -0400 (EDT) Date: Thu, 27 Jul 2000 22:01:22 -0400 (EDT) Message-Id: <200007280201.WAA26986@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] OS protection of hardware in Linux In-Reply-To: <200007272038.QAA25870@soggy-fibers.ai.mit.edu> References: <200007272038.QAA25870@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: > One response, > from Linus ("I'm a dictator") Torvalds, was, in part: BTW... it's occured to me that that might look like casting aspersions to someone who doesn't follow Linux development. It wasn't; he is often referred to as "dictator" on the list (sometimes this is preceded by "benevolent", sometimes not). And he himself really does say things pretty nearly that blunt, in the same rather puckish way that he talks about his quest for world domination. Not completely serious, and not meant to be taken that way --- but not entirely joking either. rst From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 22:26:37 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20823 for dvd-discuss-outgoing; Thu, 27 Jul 2000 22:26:37 -0400 Received: from dial149.roadrunner.com (sf-du149.cybermesa.com [209.12.75.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA20820 for ; Thu, 27 Jul 2000 22:26:34 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id UAA00510 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 20:26:58 -0600 Date: Thu, 27 Jul 2000 20:26:57 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Source code versus Object Code (executable) Message-ID: <20000727202656.A478@localhost> References: <4.2.2.20000726103434.026d5c10@pop.bellatlantic.net> <20000727194455.B3157@localhost> <0007271908051K.27584@www.rjmconsulting.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <0007271908051K.27584@www.rjmconsulting.com>; from rmiller@duskglow.com on Thu, Jul 27, 2000 at 07:06:52PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 07:06:52PM -0700, Jim Miller wrote: > On Thu, 27 Jul 2000, Paul Fenimore wrote: > > > Of course, in this reading, the P's suit is out on its ear because > > it doesn't protected "commercial access", nor does the crypto isn't > > attempting to solve any problem crypto is capable of solving. > > > Sorry to nitpick, but what does this mean? This is probably the most amusing > sentence structure I've ever seen. ;-) > > as one lawyer said: "Objection! That sentence should be taken out and shot!" Bang. Feel free to keep picking. I've got plenty of bullets left to execute sentences. The P's suit is meritless because CSS does not protect "commercial access". CSS controls non-copying use of a work. Nor does CSS attempt to solve a soluble problem. To read the statute as the P's wish to, is to assume that Congress passed a law legislating protection for a class of crypto systems that do not exist: cryptography that prevents copying. "This reading" means taking "access" to be the commercial transaction that compensates the copyright owner. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 22:30:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA20981 for dvd-discuss-outgoing; Thu, 27 Jul 2000 22:30:58 -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 WAA20978 for ; Thu, 27 Jul 2000 22:30:57 -0400 Message-ID: <20000728022953.24687.qmail@web512.mail.yahoo.com> Received: from [64.81.25.37] by web512.mail.yahoo.com; Thu, 27 Jul 2000 19:29:53 PDT Date: Thu, 27 Jul 2000 19:29:53 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Samuelson's article in Berkeley Technology Law Journal 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 Pamela Samuelson has written an article titled Intellectual Property and the Digital Economy: Why the Anti-Circumvention Regulations Need to Be Revised http://www.law.berkeley.edu/journals/btlj/articles/14_2/Samuelson/html/reader.html It's definitely a masterful look at the DMCA. She provides some citations for the fair use => fair access idea. I don't know if anybody has posted these here yet. - See 144 CONG. REC. H7097 (daily ed. Aug. 4, 1998) (letter from Rep. Howard Coble to Rep. Rick Boucher) (indicating an intent to distinguish between circumvention to get unauthorized access to a work and circumvention to make fair uses). - See, e.g., 144 CONG. REC. H7093 (daily ed. Aug. 4, 1998) (statement of Rep. Bliley) (indicating that the Commerce Committee understood the legislation to enable consumers to "exercise their historical fair use rights"); __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 22:52:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA22539 for dvd-discuss-outgoing; Thu, 27 Jul 2000 22:52:53 -0400 Received: from hotmail.com (f178.law9.hotmail.com [64.4.9.178]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id WAA22536 for ; Thu, 27 Jul 2000 22:52:52 -0400 Received: (qmail 14848 invoked by uid 0); 28 Jul 2000 02:51:51 -0000 Message-ID: <20000728025151.14847.qmail@hotmail.com> Received: from 209.206.54.141 by www.hotmail.com with HTTP; Thu, 27 Jul 2000 19:51:51 PDT X-Originating-IP: [209.206.54.141] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Thu, 27 Jul 2000 22:51:51 EDT 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 just finished reading Robert Thau's excellent article. I am truly impressed. The only comment I would add is that in the section "Inconsistent with Constitutional principles," I would argue that the right the MPAA is arguing they have been granted fails not two of the limitations on what may be granted, but all three. Elsewhere the paper shows that the MPAA thinks one of its rights is to vet the design of CSS implementations, and this would inhibit progress of science and useful arts, not promote them. It's nice to see that there is an interpretation where the DMCA might actually be constitutional - I'm alarmed that I fell into the MPAA's trap of how to read the statute! ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 23:44:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA24977 for dvd-discuss-outgoing; Thu, 27 Jul 2000 23:44:22 -0400 Received: from dial149.roadrunner.com (sf-du149.cybermesa.com [209.12.75.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA24973 for ; Thu, 27 Jul 2000 23:44:19 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id VAA00597 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 21:44:49 -0600 Date: Thu, 27 Jul 2000 21:44:48 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000727214447.B478@localhost> References: <20000728015934.19930.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000728015934.19930.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Thu, Jul 27, 2000 at 06:59:34PM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 06:59:34PM -0700, Bryan Taylor wrote: > 1201(c)(2) says explicitly that section 1201 was not intended to > broaden contributory or vicarious copyright liability: > > 1201(c)(2) "Nothing in this section shall enlarge or diminish vicarious > or contributory liability for copyright infringement in connection with > any technology, product, service, device, component, or part thereof." > > This whole issue of "prove that DeCSS isn't causing the piracy" is > silly. If it has legitimate uses, then 1201(c)(2) + Sony Betamax > immunize it from this. The same language is basically built into > 1201(a)(2)(B): "has only limited commercially significant purpose or > use other than to circumvent". This is really the same as the test in > Betamax. The point isn't to claim that trafficking is vicarious infringement, or to show vicarious is absent by virtue of no infringement. The P's are claiming that prophylaxis comes _before_ fair use, use, and they will also claim (OK, so this is a guess) that the D's never get to vicarious for the same reason they never get to fair use. Their attitude is, "Doh! It's _prophylaxis_, that means _before_, you know: _preventative_. You're not entitled to fair use because infringement isn't the offense. For the same reason arguments about 'no vicarious because of (c)(2)' are similarly flawed." So, I think the P's argument go like: 1. CSS is prophylactic to infringement. Prophylaxis is 'access control'. 2. Circumvention (a)(1) and trafficking (a)(2) do not involve infringement, they involve their technological suppression, consequently we never get to contributory infringement for the same reason we never get to fair use. 3. I (pretending I'm the P's) need to show that CSS prevents copying, and that DeCSS enables copying because that is the bit about showing that CSS is technological suppression/prophylaxis of infringement. 4. So the bit in 1201(c)(2) about not enlarging contributory or vicarious' is just there as a safe-guard; it doesn't apply because access comes before use, or it applies to (b). 5. There is no other sensible reading of the statute. Their argument is complete bull-shit. I want to show that the statute has been completely misread by the plaintiffs. I am not trying to show the absence of vicarious or contributory. Here is how things work (I think): A. Cryptography isn't a solution to the "copy control problem". There is no solution because publication is, well, making public. Public things can be copied. It is _impossible_ for cryptography to control copying. And I mean it! Like the laws of thermodynamics. If it can be seen (not destroyed), it can be copied. B. DeCSS in particular does not enable copying. C. These two eliminate the basis for claiming that CSS is prophylaxis. D. 1. Furthermore, the statute is not about prophylaxis of copying. 2. The statute is in fact about prophylaxis (prevention) of use, but ONLY in very specific circumstances. 3. 1201(a) protects the commercial transaction to acquire the work. 4. Because Congress knew that cryptography is not a solution to the copying problem, the didn't attempt to legislate the impossible. 5. The statute is designed to deny *use* of a work to those who intercept a work being transmitted on a public network (without paying the copyright owner). This is protection of "commerce", but not "copyright" per se is achieved though the techniques of real, not pretextual, encryption. D. The sensible reading of the statute is that access is the commercial transaction to acquire the work. CSS does not protect a transaction, it regulates use _after_ the copyright owner's commercial interest is done. In other words CSS has nothing to do with 1201-access control. E. The bit about vicarious infringement was meant to emphasize that, in the case of (a)(1), not copyright as a whole was being regulated, but rather first-sale in particular. Issues of use are outside the scope of 1201(a) except as they pertain to an initial commercial transaction. F. The P's lawsuit is completely without statutory foundation. G. Most of the constitutional questions of use, fair use, and issues of internal statutory consistency go away, I think. Examples of the consequences of P's reading of the statute (I noticed one that Bryan posted while I was away): 1. Fair use is hosed. There is a wall all the way around. 2. The guaranteed of non-copyright use is destroyed by a 10 MT nuclear weapon. 3. 1201 over-rides anti-trust. 4. Authority of the copyright owner is totally broken. 5. Patent-like control to authors. 6. Unlimited times under the monopolies clause. 7. Ex post facto delegation to private parties. 8. Erases the difference between 1201(a) and 1201(b). 9. Voids the statutory provision in 1201(c) that were enacted simultaneously with 1201(a)(3)(B). 10. Gawd. I can't even keep track of all the problems that "access" == "each descrambling of the ciphertext" creates. There are probably more that I've forgotten. All because "access" is allowed to happen over and over again, instead of once, at first sale. > One thing that was clear from the trial was that DeCSS served to > communicate the methods needed to allow interoperability of Linux with > DVD's and their related programs. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Thu Jul 27 23:51:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA25342 for dvd-discuss-outgoing; Thu, 27 Jul 2000 23:51:56 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA25339 for ; Thu, 27 Jul 2000 23:51:54 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id UAA24715 for ; Thu, 27 Jul 2000 20:50:59 -0700 Date: Thu, 27 Jul 2000 20:50:59 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728025151.14847.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 Openlaw is showing what opensource people have known for a long time... development by committee is slow andsometimes never gets done. We have to take a tip from the programmers and let the individuals write the big chunks and then throw it out to the community for checking and suggestions. So let's put together a TODO list and move forward. I'm working under the assumption that there would be two amicus legal briefs filed by this group or a more legally noteworthy individual or group on behalf of this group. The topic of these two legal briefes would be: The Authority Model Why DeCSS implements, rather than circumvents, CSS How the DMCA can be read to be can be read to avoid Constitutionality troubles What's wrong with the MPAA's authority model Why the MPAA failed to show DeCSS circumvents DMCA's Internal Protections 1201(c)(2) [I believe] regarding the limit to DMCA's ability to increase claims against copyright 1201(d) [somewhere] regarding the limit to DMCA's ability to limit free speech or restrict other first amendment rights (fair use) The first brief should probably be based on the great work Robert's done. So how about people input their corrections and modifications to this list for (BRIEF!) discussion by, say, Tuesday? And then Robert can incorporate the proper changes and we can get something out by the end of the week. The second brief is more legal in nature and would require some VERY legal svavvy folks to put it together properly. Do we have any takers? It needs to be concise, accurate, and speedily done. Wendy? Peter? Someone has to take the helm on this and move forward. My personal input to Robert regarding his authority paper: I'd like to suggest that you soft pedal the issues of anti-trust. Focus on the suit at hand and how DeCSS doesn't circumvent because no reading of the law that would make that true is sensible. Remember that this is going to be read by Kaplan as the final decider of law. Bring up the points for the purpose of entering the record as basis for appeal, but don't play it up so much that he thinks he's being set up for recusal grounds, get me? Those are my two bits and my call to arms. We only have a week from Tuesday to file and this issue is SERIOUS for the future of free speech and non-corporate lifestyle choices. Jeme. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org http://www.nader2000.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 00:05:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA25576 for dvd-discuss-outgoing; Fri, 28 Jul 2000 00:05:34 -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 AAA25573 for ; Fri, 28 Jul 2000 00:05:32 -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:2.21) with ESMTP id AAA25399 for ; Fri, 28 Jul 2000 00:04:56 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id AAA27354; Fri, 28 Jul 2000 00:04:55 -0400 (EDT) Date: Fri, 28 Jul 2000 00:04:55 -0400 (EDT) Message-Id: <200007280404.AAA27354@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: <20000728025151.14847.qmail@hotmail.com> References: <20000728025151.14847.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > I just finished reading Robert Thau's excellent article. I am truly > impressed. The only comment I would add is that in the section > "Inconsistent with Constitutional principles," I would argue that the right > the MPAA is arguing they have been granted fails not two of the limitations > on what may be granted, but all three. Elsewhere the paper shows that the > MPAA thinks one of its rights is to vet the design of CSS implementations, > and this would inhibit progress of science and useful arts, not promote > them. I didn't want to touch that third one, because I really don't know how to argue it --- "promotes progress of science and the useful arts" is so much in the eye of the beholder. The simple fact of a patent-like monopoly grant clearly isn't enough, or the patent-grant language in the Constitution (which has "promotes ... progress" as a requirement) would be self-negating. > It's nice to see that there is an interpretation where the DMCA > might actually be constitutional - I'm alarmed that I fell into the > MPAA's trap of how to read the statute! Well, my reading eliminates some of the problems, but others remain, including the effect on fair use (presently statutory, but with a Constitutional basis), which isn't so much chilled by this law as frozen solid. But the facts of this case don't lend themselves to that sort of argument. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 00:28:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA26087 for dvd-discuss-outgoing; Fri, 28 Jul 2000 00:28:21 -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 AAA26084 for ; Fri, 28 Jul 2000 00:28:20 -0400 Message-ID: <20000728042715.15707.qmail@web514.mail.yahoo.com> Received: from [64.81.25.37] by web514.mail.yahoo.com; Thu, 27 Jul 2000 21:27:15 PDT Date: Thu, 27 Jul 2000 21:27:15 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] IP Misuse Article (Guess where it came from?) 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 In an earlier issue of the Berkeley Techology Law Journal I found a great article on copyright misuse issues in the arena of computer programs: Misuse or Fair Use: That is the Software Copyright Question by James A.D. White http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/reader.html Here's a nice excerpt: __________________________ The doctrine of intellectual property misuse first arose in the early 1900s in conjunction with the use of patents. In the 1917 case of Motion Picture Patents v. Universal Film Mfg. Co., the patentee licensed its patented movie projector on the condition that the film used in the machine must be purchased from the patentee (a type of tying arrangement). The Court found that: "[S]uch a restriction is invalid because such a film is obviously not any part of the invention of the patent in suit; because it is an attempt, without statutory warrant, to continue the patent monopoly in this particular character of film after it has expired, and because to enforce it would be to create a monopoly in the manufacture and use of moving picture films, wholly outside of the patent in suit and of the patent law as we have interpreted it." In short, the Court denied relief to the patentee because the licensing restrictions attempted to extend the scope of the film projector patent into the unpatented area of film. ___________________________ I went and looked up that case. The similarities to the DeCSS case are spooky! Here's a link to it: MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO. 243 U.S. 502 (1917) http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=243&invol=502 __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 01:04:49 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA26972 for dvd-discuss-outgoing; Fri, 28 Jul 2000 01:04:49 -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 BAA26969 for ; Fri, 28 Jul 2000 01:04:47 -0400 Message-ID: <20000728050344.9227.qmail@web515.mail.yahoo.com> Received: from [64.81.25.37] by web515.mail.yahoo.com; Thu, 27 Jul 2000 22:03:44 PDT Date: Thu, 27 Jul 2000 22:03:44 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Let's not miss another deadline! 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 --- Jeme A Brelin wrote: > Openlaw is showing what opensource people have known for a long > time... development by committee is slow andsometimes never gets > done. > > We have to take a tip from the programmers and let the individuals > write the big chunks and then throw it out to the community for > checking and suggestions. Let's do it! > So let's put together a TODO list and move forward. I think everybody that's looked at Robert's work agrees it's got a lot of meat, especially on the authority stuff. The link is: http://www.ai.mit.edu/people/rst/dmca/auth/auth.html The last outline that we had going is sort of in line with what you had sketched, but it's badly out of date since it was pre-trial. It's at http://eon.law.harvard.edu/archive/dvd-discuss/msg04799.html I think I've seen several pieces of outlines since this one. I know Paul and Chris have floated some around on various things. One approach is to first adjust the outline to reflect post-trial issues and tastes, and then use Robert's document to fill in the appropriate pieces, and write the rest to fill the gaps. Another approach might be to ditch the outline and have people write a bunch of short essays on various topics and then try to merge them together. This has the advantage of getting ideas on paper quickly, but the disadvantage that somebody will have to make some tough decisions when we try to merge things, and it might make for some incoherent flow. A third approach is to elect Robert (if he's willing) the initial editor and just send stuff to him and let him stick it in until we have some kind of draft. At some point, we'll need to turn over the editing to one of the lawyers. Feedback? Which approach? > My personal input to Robert regarding his authority paper: > I'd like to suggest that you soft pedal the issues of anti-trust. > Focus on the suit at hand and how DeCSS doesn't circumvent because > no reading of the law that would make that true is sensible. > Remember that this is going to be read by Kaplan as the final > decider of law. I'd disagree with this for two reasons. First I think the antitrust issue is really at the heart of the authority claim. Second, Kaplan's not the "final" decider of law, and if we make a credible argument on antitrust he might not be a decider at all (either voluntarily or after an appeal). __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 01:09:26 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27177 for dvd-discuss-outgoing; Fri, 28 Jul 2000 01:09:26 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27174 for ; Fri, 28 Jul 2000 01:09:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA15428 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 01:12:26 -0400 Date: Fri, 28 Jul 2000 01:12:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000728011221.G14138@eldritchpress.org> References: <20000728015934.19930.qmail@web512.mail.yahoo.com> <20000727214447.B478@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000727214447.B478@localhost>; from fenimore@roadrunner.com on Thu, Jul 27, 2000 at 09:44:48PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Thu, Jul 27, 2000 at 09:44:48PM -0600, Paul Fenimore wrote: > > So, I think the P's argument go like: > 1. CSS is prophylactic to infringement. Prophylaxis is 'access control'. > 2. Circumvention (a)(1) and trafficking (a)(2) do not involve > infringement, they involve their technological suppression, > consequently we never get to contributory infringement for the > same reason we never get to fair use. > 3. I (pretending I'm the P's) need to show that CSS prevents copying, > and that DeCSS enables copying because that is the bit about > showing that CSS is technological suppression/prophylaxis of infringement. > 4. So the bit in 1201(c)(2) about not enlarging contributory or vicarious' > is just there as a safe-guard; it doesn't apply because access comes > before use, or it applies to (b). > 5. There is no other sensible reading of the statute. > > Their argument is complete bull-shit. > I think Samuelson's discussion of Vault v Quaid is particularly important. She exposes the conflict between the careful exceptions and the broad protection against the technology needed to act under the exceptions. Her rendering of the legislative history is illuminating. http://www.law.berkeley.edu/journals/btlj/articles/14_2/Samuelson/html/reader.html III.... [footnotes omitted] The Administration may have hoped that in all the hoopla about crafting exceptions to section 1201(a), Congress would not notice that its seeming recognition of the legitimacy of circumventions for noninfringing purposes in section 1201(c)(1) might effectively be nullified by section 1201(b)(1), which arguably broadly bans technologies necessary to accomplish such circumventions. ... The potential for strike suits becomes stronger if one realizes that it is not necessary (or arguably even relevant) to litigation under the anti-device provisions of DMCA whether any act of underlying infringement (e.g., illegal copying of a protected work) has ever taken place. The mere potentiality for infringement will suffice to confer rich rewards on a successful plaintiff. Consider, for example, a recent lawsuit brought by the maker of a proprietary game console against the maker of emulation software that permits games initially developed for the proprietary console to be played on iMac computers. Relying on the DMCA anti-device provision, the plaintiff is seeking up to $25,000 per unit sold in damages because the emulation software allegedly bypasses an anti-copying feature in the games. The plaintiff did not allege and need not prove any actual illicit copying by users of the defendant's emulation software. If Kaplan can't craft an interpretation of 1201(c)(2) to meet the exceptions for fair use then he will have to throw out the whole bill and have Congress rewrite it. It seems plain that the MPAA doesn't want to have Kaplan observe that the only use of DeCSS is fair use, with a valid DVD disc and a valid DVD player. But I agree with your point 5 that there is no other sensible reading of the statute. So let's throw it out. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 01:42:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA27303 for dvd-discuss-outgoing; Fri, 28 Jul 2000 01:42:31 -0400 Received: from csimo02.mx.cs.com (csimo02.mx.cs.com [205.188.156.53]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA27300 for ; Fri, 28 Jul 2000 01:42:30 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo02.mx.aol.com (mail_out_v27.12.) id x.f2.144a996 (1813) for ; Fri, 28 Jul 2000 01:41:21 -0400 (EDT) Message-ID: Date: Fri, 28 Jul 2000 01:41:21 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I can see your point. But I think a preponderance of the evidence would suffice as far as proving trade secrets were broken illegally, but you've got the burden of proof in the right place. And ok, maybe the plain nature of work has changed. But you can't deny knowledge is becoming more and more important, and physically doing something (and by that I meant manual labor in particular, in the old days is was man's work, now its chump's work) Now for the big question: what sort of constitutional amendments would we need to make so that we can stop relying on philosophies from people who couldn't have imagined the sheer importance of information in a cyberspace age? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 02:00:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA30410 for dvd-discuss-outgoing; Fri, 28 Jul 2000 02:00:08 -0400 Received: from csimo01.mx.cs.com (csimo01.mx.cs.com [152.163.225.74]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA30407 for ; Fri, 28 Jul 2000 02:00:07 -0400 From: Consilgere@cs.com Received: from Consilgere@cs.com by csimo01.mx.aol.com (mail_out_v27.12.) id x.c6.88e4c98 (1813) for ; Fri, 28 Jul 2000 01:59:02 -0400 (EDT) Message-ID: Date: Fri, 28 Jul 2000 01:59:02 EDT Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit X-Mailer: CompuServe 2000 32-bit sub 103 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu anecdotes. exceptions, not rules. Yes, information was important in wartime, and during exploration. But Im talking about peacetime, civilian life. A serf on a manor in England knew how to plant his crop, and praise his god. That's all he needed to know. And usually, that pretty much was all he knew. If you told him the Earth revolved around the sun, he wouldn't care. It didnt affect him. Now, you tell someone the value of some company dropped 5%, he goes scrambling for his computer to change his portfolio. You couldn't force someone to pay for your stuff in the 1920s by simply knowing a name, address and a 16 digit number. You couldn't close a store by feeding paper with holes in it into a machine, and you couldn't give someone a book without relinquishing your copy, or copying it verbatim into another book. We are more reliant on information than we were before, that's why we need to change the way we treat it. Because it has a different role now. In the past, information was rarely of the importance you're describing. It got more important as time progressed, but its still fundamentally different than it was back then. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 02:16:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA30643 for dvd-discuss-outgoing; Fri, 28 Jul 2000 02:16:20 -0400 Received: from rjmconsulting.com (root@ns.rjmconsulting.com [208.243.211.182]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA30640 for ; Fri, 28 Jul 2000 02:16:18 -0400 Received: from localhost (localhost [[UNIX: localhost]]) by rjmconsulting.com (8.9.3/8.9.3) id XAA02261 for dvd-discuss@eon.law.harvard.edu; Thu, 27 Jul 2000 23:25:59 -0700 From: Jim Miller To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy Date: Thu, 27 Jul 2000 23:00:37 -0700 X-Mailer: KMail [version 1.0.29.2] Content-Type: text/plain References: In-Reply-To: MIME-Version: 1.0 Message-Id: <0007272325571R.27584@www.rjmconsulting.com> Content-Transfer-Encoding: 8bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I think the answer to that is simple: No law shall be passed that abridges the right to personal posession of information acquired in good faith, regardless of form or medium, except in circumstances which immediately and presently affect the safety of the public. No law shall be passed that restricts transfer, posession, or sale of information where such action would promote the causes of science and research. No law shall be passed that restricts the reasonable personal use of information, except where such use would affect the safety of the public. For the purposes of this amendment, any legal entities other than a corporeal human being shall not be considered a person. Congress is granted the power to pass laws restricting commercial use of information where such use does not conflict with the rights granted in this Amendment. In other words: Once you acquire information, you can do what you want with it, as long as it doesn't harm others and the use is strictly personal. On Thu, 27 Jul 2000, you wrote: > Now for the big question: what sort of constitutional amendments would we > need to make so that we can stop relying on philosophies from people who > couldn't have imagined the sheer importance of information in a cyberspace > age? -- Jim Miller - rmiller@duskglow.com - russell@know-where.com ----------------------------------------------------------------------- The following sites are my own and do not necessarily represent the views of any of my clients. http://www.duskglow.com http://www.singlegeek.com http://www.whathaveyoudone.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 03:58:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA31214 for dvd-discuss-outgoing; Fri, 28 Jul 2000 03:58:06 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA31211 for ; Fri, 28 Jul 2000 03:58:05 -0400 Received: from naboo (user-2inib0u.dsl.mindspring.com [165.121.44.30]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id AAA24794 for ; Fri, 28 Jul 2000 00:57:29 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Fri, 28 Jul 2000 00:56:34 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <200007280404.AAA27354@soggy-fibers.ai.mit.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Comments on Robert Thau's article (http://www.ai.mit.edu/people/rst/dmca/auth/auth.html), in my role as devil's advocate: "There is never any case in which the two implementations do anything different. How, then, can the plaintiffs claim that one of these things is providing an access check which is bypassed by the other?" The critical flaw in this approach is that the plaintiffs don't claim an access check. They claim that CSS is a protection mechanism, and that the difference is that licensed implementations protect the decrypted video from being copied, while DeCSS makes the decrypted streams easily copyable to other media or distribution systems (such as DivX). That's a big difference. No one can deny the fact that DeCSS *can* be used in the process of circumvention. Without DeCSS or a similar program, a typical computer owner would not be able to directly copy a disc or copy the files on it. The only defense against this fact is that DeCSS has other purposes, but the article doesn't adequately make this point. "...contorted interpretation of the law which leads the plaintiffs to claim that CSS is providing access control despite the fact that in the ordinary course of its operation, it can never deny access" The issue of access control is not that it is denied or not, only that access is limited to a licensed system that takes steps to protect the plaintext content from being copied. This representation of the plaintiff's interpretation is inaccurate. "...perform some explicit test that the user is authorized to view a particular work..." This is only one interpretation of DMCA, which says nothing about the *user* being authorized. DMCA refers only to gaining access to a work. An alternative interpretation is that CSS authorizes the access--or the *use*, if you will--not the user. From this viewpoint the argument and supporting examples of pay per view and certificates have no relevance. As the plaintiffs admit, there is no license with the user. This is because the user is not involved in the authorization process -- only the devices and media are. The article then points out that this is indeed the point of view of the plaintiffs. It then attacks CSS as "false" encryption (a mostly irrelevant point, which it admits near the end of the section) and as something that does not check if the viewer is authorized to view a work. Once again, the *viewer* is not what is being authorized. An effective argument must attack this claim of the plaintiffs, not veer off into the wrong authorization topic. The next section (encryption not required for access control) makes way too much of nitpicky points of semantics. It doesn't matter how CSS works. It was clearly designed for the purpose of access control, so it's very hard to argue that it doesn't qualify. Macrovision is just some fiddling with video pulses, yet it's explicitly named in DMCA. "without such a grant of authority, the plaintiffs claim, ``decryption'' is illegal" -- Excellent point, if you can show that the plaintiffs truly claim this. There's some meat here, but it gets thrown away again by claiming that "authority must be granted to the party performing the decryption." No. As the article itself admits, this is not the plaintiff's position, and nothing in the article has attacked the plaintiff's real position. Next section (access controlled is access to a market). Hard to find fault with any of these arguments. Next section (Inconsistent with Congressional intent). Brilliant. Excellent quotes from congressmen, aimed right at the heart of the argument. Remainder of article likewise hard to find fault with, other than a weak argument of "One could build a DVD player which did not do CSS, but it would render so few disks as to be effectively useless". There are thousands of non-CSS discs on the market. A non-CSS player could be quite useful in a number of environments such as business or education. The focus should instead be on the inability to play a considerable number of commercially available titles. My two cents: Condense all the stuff about authorizing users to one or two short paragraphs. The examples of authorization schema are beside the point. They all involve authorizing the user. As the article points out at the end of the authorization section, the plaintiffs have adopted another reading. So why is so much of the article devoted to a different reading? Get rid of all the irrelevant arguments about false encryption and pretextual authorization (it's a lovely phrase, but it's not germane). Beef up the part about plaintiffs claiming (or even implying) that decryption is illegal. Then I think you'll have something that's right on target. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 03:59:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id DAA31300 for dvd-discuss-outgoing; Fri, 28 Jul 2000 03:59:59 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id DAA31297 for ; Fri, 28 Jul 2000 03:59:58 -0400 Received: from naboo (user-2inib0u.dsl.mindspring.com [165.121.44.30]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id AAA26843 for ; Fri, 28 Jul 2000 00:59:28 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: Fri, 28 Jul 2000 00:58:33 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <8lo4c8$s52$1@blowfish.isaac.cs.berkeley.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu David A. Wagner, on Wednesday, July 26, 2000 6:48 PM, wrote > >By the way, on many computers, if you don't have enough physical memory >(or if you switch tasks to another application while the DVD player is >running, and that other application uses a fair amount of memory), I'd >imagine that the unencrypted content could easily be swapped or paged >out to hard disk, unless the software players take extraordinary measures >to prevent this. (I know a little about it, because as a cryptographer, >one has to worry about keys being swapped or paged to disk and staying >there for a while. Every cryptographer I've spoken says it is hard, if >not impossible, to reliably prevent this on most Windows platforms.) As I recall, the CSS license explicitly requires that decrypted content be kept in protected memory and not paged to disc. Licensed decoders must take steps to prevent memory buffers from being swapped out. (Not that they could be anyway, when you're refreshing them at 24 or 30 frames per second.) -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 04:10:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA31621 for dvd-discuss-outgoing; Fri, 28 Jul 2000 04:10:00 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA31618 for ; Fri, 28 Jul 2000 04:09:54 -0400 Received: from naboo (user-2inib0u.dsl.mindspring.com [165.121.44.30]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id BAA06721 for ; Fri, 28 Jul 2000 01:09:22 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Date: Fri, 28 Jul 2000 01:08:26 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: <20000727214447.B478@localhost> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore, on Thursday, July 27, 2000 8:45 PM, wrote >Here is how things work (I think): >B. DeCSS in particular does not enable copying. Sure it does. I used DeCSS the other day (I needed to analyze the GOP sequences of some movies to optimize time searching -- an excellent example of fair use, by the way). The resulting files could be copied and played without the original disc. DeCSS enabled this. Without DeCSS the copied files would not play. DeCSS enables other things. Other hardware and software enable copying. But it can't be denied that DeCSS enables copying. >Examples of the consequences of P's reading of the statute (I noticed >one that Bryan posted while I was away): >1. Fair use is hosed. There is a wall all the way around. >2. The guaranteed of non-copyright use is destroyed by a 10 MT nuclear weapon. >3. 1201 over-rides anti-trust. >4. Authority of the copyright owner is totally broken. >5. Patent-like control to authors. >6. Unlimited times under the monopolies clause. >7. Ex post facto delegation to private parties. >8. Erases the difference between 1201(a) and 1201(b). >9. Voids the statutory provision in 1201(c) that were enacted >simultaneously with 1201(a)(3)(B). For what it's worth, I think these are excellent points except for 4 (everyone keeps going on about authorizing the user, but plaintiffs approach is to authorize the use). -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 06:17:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA01868 for dvd-discuss-outgoing; Fri, 28 Jul 2000 06:17:40 -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 GAA01865 for ; Fri, 28 Jul 2000 06:17:38 -0400 Received: from localhost (ssyreeni@localhost) by kruuna.Helsinki.FI (8.10.1/8.10.1) with ESMTP id e6SAH7r06501 for ; Fri, 28 Jul 2000 13:17:08 +0300 (EET DST) X-Authentication-Warning: kruuna.Helsinki.FI: ssyreeni owned process doing -bs Date: Fri, 28 Jul 2000 13:17:06 +0300 (EET DST) From: Sampo A Syreeni To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) In-Reply-To: <20000728011221.G14138@eldritchpress.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 Fri, 28 Jul 2000, Eric Eldred wrote: >I think Samuelson's discussion of Vault v Quaid is particularly >important. She exposes the conflict between the careful >exceptions and the broad protection against the technology >needed to act under the exceptions. Her rendering of the >legislative history is illuminating. I also think her primary interest, copyright misuse, has some real merit, if not for this case, but for similar ones or for appeal. As I see it, the article portrays copyright misuse as a valid defense for infringement. Now, this case is not about infringement or even circumvention (which would make for a very similar analysis). But eventhough it's pretty far fetched, my gut feeling is that the MPAA/DVD-CCA behind the scene dealings have a trust-like vibe. In a situation like this, the Samuelson article lays out a hoarde of reasons to try a copyright misuse analysis instead. MPAA members' distasteful authorization policies are on the record to the extent that we know fair use isn't going to be possible. We also know that Livid-sorta software isn't going to be authorized. Hence once antitrust concerns are sidestepped (as Samuelson suggests they should), misuse. (The article cites this as evidence that misuse is better than antitrust - monopolistic effects need not be so strong.) That would make the MPAA copyrights unenforceable. How would something like this impact the authority language in 1201? Sampo Syreeni , aka decoy, student/math/Helsinki university From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 06:28:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA02029 for dvd-discuss-outgoing; Fri, 28 Jul 2000 06:28:36 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA02026 for ; Fri, 28 Jul 2000 06:28:35 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id DAA25922 for ; Fri, 28 Jul 2000 03:27:40 -0700 Date: Fri, 28 Jul 2000 03:27:40 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Shotgun Analogy 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 Jul 2000 Consilgere@cs.com wrote: > Now for the big question: what sort of constitutional amendments would we > need to make so that we can stop relying on philosophies from people who > couldn't have imagined the sheer importance of information in a cyberspace > age? Two things: 1. I think the framer's of the Constitution did a fine job and that document contains more balanced subtlety than any law written today with its jargon and nonesense hiding its true purpose and effect. The way information is treated in the Constitution is very much the way information should be treated today. The fellows who wrote that work, we are told, lived at one time in a highly repressed society and information (in the form of pamphleting and soapboxing and even singing) got them out and into a more enlightened time. They knew exactly what they were doing and nothing is so different today that their words do not still hold strong and important meaning. Ideas have ALWAYS been dangerous. But they are only dangerous to the powerful. Knowledge is power and when knowledge comes to the people, well, you see where that goes. Laws that restrict the free flow of information are directly anti-populist and meant only to keep the power at the top. That's not what this country is supposed to be about. Let's try to get moving back in that direction. 2. This thread is counterproductive to the task at hand: Writing an amicus brief for the finding of law portion of this trial. Every post that does not contribute to that or offering new information for defense attourneys reading these messages is a distraction and just postpones getting the real work done. That is all. J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 06:52:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA03701 for dvd-discuss-outgoing; Fri, 28 Jul 2000 06:52:19 -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 GAA03698 for ; Fri, 28 Jul 2000 06:52:18 -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:2.21) with ESMTP id GAA16825 for ; Fri, 28 Jul 2000 06:51:48 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id GAA28230; Fri, 28 Jul 2000 06:51:48 -0400 (EDT) Date: Fri, 28 Jul 2000 06:51:48 -0400 (EDT) Message-Id: <200007281051.GAA28230@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Let's not miss another deadline! In-Reply-To: References: <20000728025151.14847.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jeme A. Brelin writes: > My personal input to Robert regarding his authority paper: > I'd like to suggest that you soft pedal the issues of anti-trust. Focus > on the suit at hand and how DeCSS doesn't circumvent because no reading of > the law that would make that true is sensible. Remember that this is > going to be read by Kaplan as the final decider of law. Bring up the > points for the purpose of entering the record as basis for appeal, but > don't play it up so much that he thinks he's being set up for recusal > grounds, get me? Ummm... I'm not sure what to make of this. The only deliberate mention of antitrust law in the piece is at the end of the "access to a market" section: Before the passage of the DMCA, this would have been somewhat questionable; indeed, it has at least the appearance of an illegal tying arrangement. But that is not what we wish to investigate here --- we simply wish to know if this is the sort of arrangement that Congress meant to protect when they passed this law. So, let us see. ... which segues into the discussion of Congressional intent. And the point of it is actually to clarify that I'm *not* arguing that the plaintiffs are guilty of an antitrust violation, but instead arguing based solely on the DMCA and its legislative history. (Kaplan says the antitrust argument would make no sense, and on this point, I'm inclined to believe him, though that film projector case from days gone by might change things a bit). I do talk about monopolies quite a bit, but "monopoly" and "antitrust violation" are not synonymous; I believe antitrust law actually *permits* certain forms of monopoly, like a drug company's monopoly over the sole cure for some disease (secured by patent). The finding of monopoly power (in the OS market) was only one of several adverse findings of fact in the Microsoft case; if it had been sufficient, by itself, to sustain a guilty verdict, it's difficult to see why the judge or the lawyers in that case spent so much time talking about Microsoft's actions in other markets (e.g., web browsers). My understanding is that MS was found guilty not of having a monopoly, which is not an offense in and of itself, but of abusing monopoly power. (Which, BTW, is a charge that the plaintiffs may be well set up to defend against, if it comes to that, by their relatively low license fees, as such things go, and their stated policy of not discriminating among potential licensees --- you'd have to argue that the license *terms* are abusive, but ooops, those are confidential). Not that I know a whole heck of a lot about antitrust law anyway, but hey, that's another reason to stay away from the topic. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:06:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA04098 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:06:02 -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 HAA04095 for ; Fri, 28 Jul 2000 07:06:01 -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:2.21) with ESMTP id HAA17376 for ; Fri, 28 Jul 2000 07:05:31 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA28254; Fri, 28 Jul 2000 07:05:30 -0400 (EDT) Date: Fri, 28 Jul 2000 07:05:30 -0400 (EDT) Message-Id: <200007281105.HAA28254@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728050344.9227.qmail@web515.mail.yahoo.com> References: <20000728050344.9227.qmail@web515.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Bryan Taylor writes: > One approach is to first adjust the outline to reflect post-trial > issues and tastes, and then use Robert's document to fill in the > appropriate pieces, and write the rest to fill the gaps. > > Another approach might be to ditch the outline and have people write a > bunch of short essays on various topics and then try to merge them > together. This has the advantage of getting ideas on paper quickly, but > the disadvantage that somebody will have to make some tough decisions > when we try to merge things, and it might make for some incoherent > flow. FWIW, when I LaTeX the source to the thing right now, it comes to 21 printed pages, plus the table of contents, though I haven't tried dinking the margins. I believe the limit on length of briefs is 30-odd pages, so there isn't much room in my document as it stands for discussion of other topics. (Well, maybe one, but it would be hard to work the transitions). Which suggests either culling out of my arguments (suggestions?), or separate briefs on other topics. It might be good, for instance, to get a brand-name cryptographer to submit a brief following up on Touretzky's testimony by pointing out how much of cryptographic research consists of studying bad cryptosystems in context to illuminate their flaws, and how precise descriptions of those cryptosystems are a necessary part of that research. (I've deliberately avoided mentioning open-source development in my piece because open source has no special status under the law; I wish it did, but it doesn't, and Kaplan doesn't strike me as the sort of judge who would entertain arguments otherwise. But cryptographic research *does* have a special status under this law; see 1201(g)). > A third approach is to elect Robert (if he's willing) the initial > editor and just send stuff to him and let him stick it in until we have > some kind of draft. At some point, we'll need to turn over the editing > to one of the lawyers. I'm certainly willing to do this wrt the authority paper. Comments are welcome. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:16:31 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA04282 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:16:31 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA04278 for ; Fri, 28 Jul 2000 07:16:28 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id C48EB7E1B5; Fri, 28 Jul 2000 13:15:56 +0200 (CEST) Date: Fri, 28 Jul 2000 13:24:54 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Cc: Jim Taylor Subject: [dvd-discuss] create a DVD that stores an email in digital form? 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 > > B. DeCSS in particular does not enable copying. > > Sure it does. I used DeCSS the other day (I needed to analyze the GOP > sequences of some movies to optimize time searching -- an excellent > example of fair use, by the way). The resulting files could be copied > and played without the original disc. DeCSS enabled this. Without > DeCSS the copied files would not play. DeCSS enables other things. > Other hardware and software enable copying. But it can't be denied > that DeCSS enables copying. this is a subtle misconception. DeCSS does not *enable* copying. From the pure technical side of things this is what happens: there are 4 layers of data: - the DVD medium - the (unprotected) UDF filesystem on the DVD medium - VOB files in the UDF filesystem - the digital MPEG content embedded in the VOB file, often encrypted via the CSS algorithm the DeCSS utility, as released by Johansen (followed by a source-code release shortly afterwards) goes to the VOB file and decrypts it the following way: - VOB file data block (a very small portion of the VOB file) gets copied by the DVD hardware into the disk-controller's temporary hardware buffers. - DVD hardware's DMA engine copies this VOB file data block into system RAM - the OS notices that the VOB file data block has been copied into RAM, and copies this data into the DeCSS's temporary IO buffers. - the CSS algorithm as reverse engineered by Johansen takes this data block, decrypts it (via the host CPU) and writes the (now decypted) digital content into another temporary buffer. - this other temporary buffer is copied by the OS to harddisk. so in fact, if properly analyzed, the DeCSS utility does not enable copying. The DeCSS utility only gives access to the encrypted digital content, but does not 'enable' copying - copying was already possible and enabled by the OS! DeCSS *uses* the OS's *existing* copy feature. The LiViD player for example does not use the OS's copy feature, it sends the decrypted content out to the videocard to display it. so, from the technical point of view, what DeCSS does, it permits 'unauthorized decryption of the digital content', but it does not 'enable' copying. Obviously the decrypted content copied to disk can be viewed and processed in many more ways than the encrypted content copied to disk - but this is not news. So what DeCSS does is that it enables many more ways of 'looking at' the content. You were able to copy around those files and process them - this was enabled by the format of the file. With the proper player even encrypted VOB files could be viewed. so to put it in a different way: the DeCSS utility *converts* the encrypted VOB format into another, mathematically equivalent format. Just like a decompression utility, it does not copy, it converts. While this fact has no relevance wrt. DMCA 1201, it probably has a relevance wrt. the First Amendment arguments: because IMO the DMCA 1201 forbids 'format conversions' as well, if *anyone* uses *any* format to restrict access to a copyrighted work, then conversion from this content format is automatically forbidden by the DMCA. This IMHO is obviously unconsitutional because is restrains speech just for the purpose of access control. A good and effective demonstration of this would be to record a DVD movie where the digital content is not an actual movie, but the digital bits of an email which is sent from X to Y. The only way to get to the contents of the DVD movie (the email) would be to decrypt via DeCSS. The DMCA prohibits this - thus it prohibits free speech. [the 'play' button will show only garbage, because while the email would be in MPEG format, the bits themselves would look like random noise on the screen.] to make it even more dramatic, maybe the EFF lawyers could make a court filing this way - putting the filing into an encrypted DVD, in digital format ;-) [AFAIK there are no tools right now to 'wrap' non-movie digital content into DVDs - what a pity.] Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:21:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA04531 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:21:27 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA04528 for ; Fri, 28 Jul 2000 07:21:26 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id HAA26735; Fri, 28 Jul 2000 07:20:57 -0400 (EDT) Message-ID: <39816CEB.B7A3CB69@mit.edu> Date: Fri, 28 Jul 2000 07:22:19 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! References: <20000728050344.9227.qmail@web515.mail.yahoo.com> <200007281105.HAA28254@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: > (I've deliberately avoided mentioning open-source development in my > piece because open source has no special status under the law; I wish > it did, but it doesn't, and Kaplan doesn't strike me as the sort of > judge who would entertain arguments otherwise. But cryptographic > research *does* have a special status under this law; see 1201(g)). I think we should be saying something about open-source development in our briefs. The CSS License restrictions amount to (among other things) a decree by the MPAA members that "Thou shalt not play our movies with an open-source player." They're prohibiting certain kinds of competition in the DVD player market. This is one aspect of our antitrust argument, and if we don't bring it up now, as I understand it, we can't bring it up later. If it were Microsoft decreeing that you couldn't run open-source applications on Windows the (current) DoJ would sue them so fast your head would spin. Why should the MPAA members be held to a different standard? It's not that open-source development has a special status under the law but that the CSS License terms specially discriminate against open-source players. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:43:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA05757 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:43:10 -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 HAA05754 for ; Fri, 28 Jul 2000 07:43:09 -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:2.21) with ESMTP id HAA19451 for ; Fri, 28 Jul 2000 07:42:39 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA28309; Fri, 28 Jul 2000 07:42:38 -0400 (EDT) Date: Fri, 28 Jul 2000 07:42:38 -0400 (EDT) Message-Id: <200007281142.HAA28309@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: References: <200007280404.AAA27354@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > Comments on Robert Thau's article > (http://www.ai.mit.edu/people/rst/dmca/auth/auth.html), in my role as > devil's advocate: I'll respond to these out of order because the last critique, in summing up, covers a lot of the others. It is: > My two cents: Condense all the stuff about authorizing users to one or two > short paragraphs. The examples of authorization schema are beside the point. > They all involve authorizing the user. As the article points out at the end > of the authorization section, the plaintiffs have adopted another reading. > So why is so much of the article devoted to a different reading? Get rid of > all the irrelevant arguments about false encryption and pretextual > authorization (it's a lovely phrase, but it's not germane). Beef up the part > about plaintiffs claiming (or even implying) that decryption is illegal. > Then I think you'll have something that's right on target. I concentrate on a different reading to show that there *is* a reading which is consistent with Congressional intent, and which avoids the legally nasty consequences of the plaintiffs' claimed monopoly over the CSS process --- consequences which seem to me to follow directly from their reading of the law. I'm well aware that there are two readings; the introduction says so. I'm arguing for mine. The reason I'm doing this, BTW, is that I don't want to create an impression that I am trying to read the law out of existence, or contract its scope to the point that it doesn't protect anything. (With another case, with another judge, I might want to do exactly that --- arguing the fair-use consequences, for instance. But not here, and not with Kaplan). In that sense, at least, the parts of the paper that you don't like are there to lay a foundation for the parts that you do like. This thrust of argument underlies a lot of stuff in the paper to which you object. For instance: > "There is never any case in which the two implementations do anything > different. How, then, can the plaintiffs claim that one of these things is > providing an access check which is bypassed by the other?" > > The critical flaw in this approach is that the plaintiffs don't claim an > access check. They claim that CSS is a protection mechanism, and that the > difference is that licensed implementations protect the decrypted video from > being copied, while DeCSS makes the decrypted streams easily copyable to > other media or distribution systems (such as DivX). That's a big difference. > No one can deny the fact that DeCSS *can* be used in the process of > circumvention. Without DeCSS or a similar program, a typical computer owner > would not be able to directly copy a disc or copy the files on it. The only > defense against this fact is that DeCSS has other purposes, but the article > doesn't adequately make this point. Hmmm... part of the consequences section points out that you need an implementation of the CSS process to make an ordinary DVD player; it's implicit that the source code for DeCSS provides such an implementation. But that's rather late in the paper. Perhaps I should make the same point when discussing the facts of the case, and wrt DeCSS specifically. > "...contorted interpretation of the law which leads the plaintiffs to claim > that CSS is providing access control despite the fact that in the ordinary > course of its operation, it can never deny access" > > The issue of access control is not that it is denied or not, only that > access is limited to a licensed system that takes steps to protect the > plaintext content from being copied. This representation of the plaintiff's > interpretation is inaccurate. I'm not sure I understand. That sentence doesn't make any representation of the plaintiffs' interpretation at all --- it says what it isn't, but not what it is. To put it another way: They do claim that CSS provides access control. (If not, what are we arguing about?) And in the ordinary course of its operation, it never does deny access. I understand that the plaintiffs have a view of what constitutes "access control" in which that all makes sense --- and that's what the sentence says, it seems to me. So I'm not sure what the problem is. > The next section (encryption not required for access control) makes way too > much of nitpicky points of semantics. It doesn't matter how CSS works. It > was clearly designed for the purpose of access control, so it's very hard to > argue that it doesn't qualify. Macrovision is just some fiddling with video > pulses, yet it's explicitly named in DMCA. Marks stated for the LOC, and Gold stated in court, that it *does* matter how CSS works --- they both claim that it is an access control process *because* it is cryptographic. I'm trying to demonstrate that there is no such limitation in the law, and that any process required to "gain access to a work" could be covered by a patent-like "access control" monopoly, if the plaintiffs' reading is adopted by the court. But we've had that argument before. (And Macrovision is explicitly named in the DMCA, BTW, because it *isn't* obviously covered by the rest of the bill --- the plaintiffs tried to get Congress to amend the law so it would be wide enough to cover it; 1201(k) is the best they could get). > "without such a grant of authority, the plaintiffs claim, ``decryption'' is > illegal" -- Excellent point, if you can show that the plaintiffs truly > claim this. There's some meat here, but it gets thrown away again by > claiming that "authority must be granted to the party performing the > decryption." No. As the article itself admits, this is not the plaintiff's > position, and nothing in the article has attacked the plaintiff's real > position. Ummm... the plaintiffs' position, as I understand it, is that CSS decryption may only be performed with their "authority". If that doesn't mean contractual privity between them and whoever decrypts the work, then what do you think it means? I don't think it *can* mean "decryption in any manner which copyright holders have decided, in privileged conversations with their attorneys which will never be admissible in court, to deem as authorized" --- if it means that, then us poor souls outside that smoke-filled room have no way of knowing, even in principle, whether we are violating the law. (Hmmm... perhaps I should toss that into this section --- but this is one argument which particularly needs the attention of a Real Lawyer(tm)). > Next section (access controlled is access to a market). Hard to find fault > with any of these arguments. > > Next section (Inconsistent with Congressional intent). Brilliant. Excellent > quotes from congressmen, aimed right at the heart of the argument. Ah, sweet music. > Remainder of article likewise hard to find fault with, other than a weak > argument of "One could build a DVD player which did not do CSS, but it would > render so few disks as to be effectively useless". There are thousands of > non-CSS discs on the market. A non-CSS player could be quite useful in a > number of environments such as business or education. The focus should > instead be on the inability to play a considerable number of commercially > available titles. You're right; I probably should tone this down a bit. Thanks for the comments! rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:51:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA06196 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:51:05 -0400 Received: from rasputin.xilix.com (root@rasputin.xilix.com [195.139.104.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA06193 for ; Fri, 28 Jul 2000 07:51:04 -0400 Received: from trustix.com (singsing.trustix.com [195.139.104.158]) by rasputin.xilix.com (8.9.3/8.9.3) with ESMTP id NAA25514 for ; Fri, 28 Jul 2000 13:46:38 +0200 Message-ID: <39817354.F53B90FB@trustix.com> Date: Fri, 28 Jul 2000 13:49:40 +0200 From: Lars Gaarden Organization: Trustix AS X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.4.0-test4 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case References: <20000727174939.17584.qmail@web513.mail.yahoo.com> <20000727153323.D14138@eldritchpress.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 Eric Eldred wrote: > > On Thu, Jul 27, 2000 at 10:49:39AM -0700, Bryan Taylor wrote: > > ... > > So why can't LiViD make a player? After all, Pavlovich testified their > > final product doesn't allow the unencrypted movie to be stored on the > > harddrive. The movie studios don't need to go into business selling > > players to "take over" that market. > > It might be interesting if Kaplan rules that DeCSS is illegal > but LiViD is not. Strange, but possible. If Kaplan considers the DeCSS Windows binary to be a tool primarily used for copyright infringement purposes, it might very well be considered illegal. It is strange, but it is something that happens when you apply a hardware law to software. Most physical devices, for example a lockpick, is designed for only one task. If the primary use for the device is illegal, or facilitates illegal activities, the tool is likely to be considered illegal. The problem is that software is a lot easier to modify. It is both a tool, and a blueprint of all the functions that the tool consists of. That is, even the DeCSS Windows binary is useful as it can be disassembled to provide the authorization and descrambling functions needed to make a DVD player. -- LarsG. These are my opinions, which may or may not be shared by my employer. Code that cracks a protection device is criminal under the DMCA even if the use of the copyrighted material that the code enables would be fair use. - Lawrence Lessig, Berkman Professor of Law, Harward Law School. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 07:52:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA06362 for dvd-discuss-outgoing; Fri, 28 Jul 2000 07:52:32 -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 HAA06359 for ; Fri, 28 Jul 2000 07:52:31 -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:2.21) with ESMTP id HAA19913; Fri, 28 Jul 2000 07:52:01 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id HAA28325; Fri, 28 Jul 2000 07:51:59 -0400 (EDT) Date: Fri, 28 Jul 2000 07:51:59 -0400 (EDT) Message-Id: <200007281151.HAA28325@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Cc: Jim Taylor Subject: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar writes: > A good and effective demonstration of this would be to record a DVD movie > where the digital content is not an actual movie, but the digital bits of > an email which is sent from X to Y. The only way to get to the contents of > the DVD movie (the email) would be to decrypt via DeCSS. The DMCA > prohibits this - thus it prohibits free speech. [the 'play' button will > show only garbage, because while the email would be in MPEG format, the > bits themselves would look like random noise on the screen.] Not necessarily; you could use some sort of steganography to conceal the "message" in ordinary-looking video. (Jargon: steganography is any technique for hiding the *existence* of a secret message, typically by burying it in some other, superficially innocuous cover document; this is related to cryptography, but distinct). Of course, the hard part of this demo is writing the CSS key sectors on the DVD (these are masked off on all commercially available DVD-RWs, IIRC). And, of course, we'd have to convince Kaplan to reopen the trial to hear more evidence... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:01:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA07027 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:01:55 -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 IAA07024 for ; Fri, 28 Jul 2000 08:01:53 -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:2.21) with ESMTP id IAA20455 for ; Fri, 28 Jul 2000 08:01:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA28345; Fri, 28 Jul 2000 08:01:23 -0400 (EDT) Date: Fri, 28 Jul 2000 08:01:23 -0400 (EDT) Message-Id: <200007281201.IAA28345@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <39816CEB.B7A3CB69@mit.edu> References: <20000728050344.9227.qmail@web515.mail.yahoo.com> <200007281105.HAA28254@soggy-fibers.ai.mit.edu> <39816CEB.B7A3CB69@mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ravi Nanavati writes: > I think we should be saying something about open-source development > in our briefs. The CSS License restrictions amount to (among other > things) a decree by the MPAA members that "Thou shalt not play our > movies with an open-source player." They're prohibiting certain kinds of > competition in the DVD player market. But you could make this argument about *any* regime where there is a legally mandated licensing requirement --- software patents, for instance. So, it seems to me, any court that buys this argument would be faced with the prospect of overturning a great deal of settled intellectual property law --- settled enough that overturning it may seem nuts. Particularly not for the sake of what probably strikes a lot of them (especially those with backgrounds in corporate law) as a bunch of crypto-socialist cyber-hippies looking for exemptions from the Rules that have Always Applied to Grown Men in the Real World. Which is nonsense, of course, but if we fight that fight now, we've effectively added it to our burden of proof, lest one nutty-looking argument sully the others. And I don't think we need the argument anyway --- all it shows is that there are reasons for objecting to the DVDCCA's license, but region coding shows that just as effectively. One battle at a time. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:05:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA07404 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:05:03 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA07401 for ; Fri, 28 Jul 2000 08:05:02 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 7FD1B7E1B5; Fri, 28 Jul 2000 14:04:32 +0200 (CEST) Date: Fri, 28 Jul 2000 14:13:30 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: <200007281142.HAA28309@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 Jim Taylor writes: > "There is never any case in which the two implementations do anything > different. How, then, can the plaintiffs claim that one of these things is > providing an access check which is bypassed by the other?" > > The critical flaw in this approach is that the plaintiffs don't claim > an access check. They claim that CSS is a protection mechanism, and > that the difference is that licensed implementations protect the > decrypted video from being copied, while DeCSS makes the decrypted > streams easily copyable to other media or distribution systems (such > as DivX). That's a big difference. There is no technical and mathematical difference between the information contained in an encrypted an a decrypted work. Both are magnetic states of atoms on the hard or DVD disk, and none can be directly perceived either by the copyright owner, or by the user. You cannot put those bits on your monitor either. Both _formats of the work_ need *multiple* steps of format-conversion and interim copying to be actually perceived by a human. Both the encrypted and the decrypted files are 'files', and as such can be copied freely, as enabled by the OS. The only thing that is affected by DeCSS is that it *widens* the ways possible to *view* the copyrighted work. But viewing is completely orthogonal to copying. DeCSS does not 'initially enable' to view the copyrighted work (the 'play' buttom on the DVD player works, no matter wether the DVD itself is infringing on the copyright of the owner of the work or not), it merely enables the viewing of the work in ways which contradict with the views of the MPAA. DeCSS does not 'enably copying' either, because copying of the VOB files is already made possible by the OS. the fact that blank writable DVDs currently cost more than written DVDs is irrelevant - a person or group of persons with sufficient criminal energy could, in an economically efficient way, produce infringing DVD disks with encrypted VOB files at the fraction of cost of current (written) DVDs. as a side-comment: the same reason is probably why none of the compression patents forbid decompression. While the analogy is not fully valid, forbidding 'unauthorized' decompression (ie. unauthorized conversion between formats) deprives me of free speech. What if someone sends me an email which is LZW compressed, if i couldnt decompress it without the permission of Unisys then speech would be limited materially. I see the very same problem with DMCA 1201. this is IMO a very robust point, on the 'Computer Science side' of things. IANAL. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:06:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA07603 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:06:33 -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 IAA07600 for ; Fri, 28 Jul 2000 08:06:32 -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:2.21) with ESMTP id IAA20724 for ; Fri, 28 Jul 2000 08:06:03 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id IAA28358; Fri, 28 Jul 2000 08:06:02 -0400 (EDT) Date: Fri, 28 Jul 2000 08:06:02 -0400 (EDT) Message-Id: <200007281206.IAA28358@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case In-Reply-To: <39817354.F53B90FB@trustix.com> References: <20000727174939.17584.qmail@web513.mail.yahoo.com> <20000727153323.D14138@eldritchpress.org> <39817354.F53B90FB@trustix.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Lars Gaarden writes: > It is strange, but it is something that happens when you apply a > hardware law to software. Most physical devices, for example a lockpick, > is designed for only one task. If the primary use for the device is > illegal, or facilitates illegal activities, the tool is likely to be > considered illegal. Actually, the law already is that weird even in the physical domain; a lockpick in the hands of a locksmith is a legitimate tool of the trade. Something to think about... rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:20:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA08976 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:20:48 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA08973 for ; Fri, 28 Jul 2000 08:20:46 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 2927A7E1B5; Fri, 28 Jul 2000 14:20:16 +0200 (CEST) Date: Fri, 28 Jul 2000 14:29:14 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <200007281201.IAA28345@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 Fri, 28 Jul 2000, Robert S. Thau wrote: > But you could make this argument about *any* regime where there is a > legally mandated licensing requirement --- software patents, for > instance. [...] yes. The open-source part of the anticompetitive argument is thus IMHO weak. Open-source (such as the GPL) in this sense means that open-source developers want to freely relicense all technology they use to others (so others can use those technologies freely as well) - and if courts accept ownership of intellectual property then this is at obvious odds. The other (serious) weakness is that an open-source OS like Linux does not mandate the usage of open-source applications. Linux users *prefer*, but do not *mandate* open-source applications. This is why eg. there are no legal open-source SSL libraries in the US, the RSA patent prevents it. There are closed-source RSA/SSL libraries available on Linux. The MPAA could, in theory, release a closed-source DVD-player for Linux. Be wary of this possibility, it takes just one company (and not much effort) to write a working a closed-source Linux software-DVD player, and this could derail this argument. I saw it in the record that defendants established that the currently announced and allegedly authorized Linux-DVD projects were all tied to some hardware - but they could as well write a closed-source player. They didnt so far, but they could easily during appeal ... Linux was simply irrelevant to the MPAA from a desktop market-share point of view, so they just ignored it. DeCSS is *not* irrelevant to the MPAA because DeCSS allows the *key less* decryption and viewing of content. DeCSS ignores region codes, and all sorts of MPAA viewing policies. The MPAA will IMO likely come out with a closed-source (binary-only) Linux software-player, which will have its own, authorized player key. > So, it seems to me, any court that buys this argument would be faced > with the prospect of overturning a great deal of settled intellectual > property law --- settled enough that overturning it may seem nuts. > [...] IMO it's just an accident that there are so few 'algorithm patents' out there, and even those cases (like LZW) the patent owners license the decryption (ie. *reading*) capabilities freely. Forbidding to *read* a file format via patent protection would be IMO at odds with the First Amendment. And this is exactly what the MPAA is trying to achieve here, but via the DMCA 1201 - and thus they made IMO the DMCA 1201 vulnerable to a (valid) First Amendment attack. Patent law could be attacked similary, if any algorithm-patent owner would be foolish enough to forbid reading of messages. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:51:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10151 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:51:13 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA10148 for ; Fri, 28 Jul 2000 08:51:12 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 945E27E1B5; Fri, 28 Jul 2000 14:50:41 +0200 (CEST) Date: Fri, 28 Jul 2000 14:59:40 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Cc: Jim Taylor Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: <200007281151.HAA28325@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 Fri, 28 Jul 2000, Robert S. Thau wrote: > > prohibits this - thus it prohibits free speech. [the 'play' button will > > show only garbage, because while the email would be in MPEG format, the > > bits themselves would look like random noise on the screen.] > > Not necessarily; you could use some sort of steganography to conceal > the "message" in ordinary-looking video. [...] it does not even have to be a 'secret' message - the ordinary-looking video could be sender saying 'you got an DVD-email from me!', to make the example more straightforward. (ie. the binary content and the video itself would correlate.) > Of course, the hard part of this demo is writing the CSS key sectors > on the DVD (these are masked off on all commercially available > DVD-RWs, IIRC). [...] how are DVDs then written to DVD_RWs? Is it possible only in an unencrypted format? > [...] And, of course, we'd have to convince Kaplan to reopen the trial > to hear more evidence... the point could be made based on the record as well, IIRC there was one example mentioned, the CSS-hiding contest winner has put the CSS algorithm into an ordinary GIF file, right? And such a message could only be read via DeCSS. So while the CSS algorithm protects some works, it might also *hide* information. The very same encryption function can be (and often is, while not yet in the case of DVDs) used to hide messages, and thus if the DMCA 1201 forbids decryption (ie. reading of messages), it also *forbids* certain forms of speech. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 08:56:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id IAA10575 for dvd-discuss-outgoing; Fri, 28 Jul 2000 08:56:51 -0400 Received: from smtp-out2.bellatlantic.net (smtp-out2.bellatlantic.net [199.45.39.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id IAA10571 for ; Fri, 28 Jul 2000 08:56:50 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out2.bellatlantic.net (8.9.1/8.9.1) with SMTP id IAA16123 for ; Fri, 28 Jul 2000 08:56:17 -0400 (EDT) Message-Id: <4.1.20000728080151.01fcfe90@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Fri, 28 Jul 2000 08:57:47 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: References: <20000728025151.14847.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 08:50 PM 07/27/2000 -0700, Jeme A Brelin wrote: > >Openlaw is showing what opensource people have known for a long >time... development by committee is slow andsometimes never gets done. > >We have to take a tip from the programmers and let the individuals write >the big chunks and then throw it out to the community for checking and >suggestions. > >So let's put together a TODO list and move forward. I appreciate your impatience and interest in doing something more concrete, but I'm also concerned about where this work would fit into Kaplan's consideration, including whether he would even accept another amicus at this stage. (The appeals court, where we all expect this to head whatever the outcome in the district court, has a more formalized procedure for accepting amici, and a longer timeline.) I don't want to shut down any discussion, but to let you know what I'm thinking. >I'm working under the assumption that there would be two amicus legal >briefs filed by this group or a more legally noteworthy individual or >group on behalf of this group. The topic of these two legal briefes would >be: > >The Authority Model > Why DeCSS implements, rather than circumvents, CSS > How the DMCA can be read to be can be read to avoid Constitutionality >troubles > What's wrong with the MPAA's authority model > Why the MPAA failed to show DeCSS circumvents This is a great substantive argument, and the discussions that have honed it are very valuable. Again, though, it may be more of an appellate argument: Kaplan refused to hear testimony on the factual basis for "authority," so he could have no basis for finding CSS to be a TPM on which DeCSS operated without authority. >DMCA's Internal Protections > 1201(c)(2) [I believe] regarding the limit to DMCA's ability to >increase claims against copyright > 1201(d) [somewhere] regarding the limit to DMCA's ability to limit >free speech or restrict other first amendment rights (fair use) As you note, these are more purely legal arguments. They probably will be developed in the defense brief, and I'll send comments to the defense team. I'm continuing to inquire as to the most appropriate way to make these arguments heard. As Chris Moseng, Michael Rolenz and others have suggested, the Copyright/Commerce request for comments (info at and linked off the Openlaw/DVD page) is one good place to put them in. I'm also recommending the draft documents to the attention of the defense team, so work to consolidate the arguments there is a good way to give them our input. Thanks! --Wendy >The first brief should probably be based on the great work Robert's >done. So how about people input their corrections and modifications to >this list for (BRIEF!) discussion by, say, Tuesday? And then Robert can >incorporate the proper changes and we can get something out by the end of >the week. > >The second brief is more legal in nature and would require some VERY legal >svavvy folks to put it together properly. Do we have any takers? It >needs to be concise, accurate, and speedily done. Wendy? Peter? Someone >has to take the helm on this and move forward. > > >My personal input to Robert regarding his authority paper: >I'd like to suggest that you soft pedal the issues of anti-trust. Focus >on the suit at hand and how DeCSS doesn't circumvent because no reading of >the law that would make that true is sensible. Remember that this is >going to be read by Kaplan as the final decider of law. Bring up the >points for the purpose of entering the record as basis for appeal, but >don't play it up so much that he thinks he's being set up for recusal >grounds, get me? > >Those are my two bits and my call to arms. > >We only have a week from Tuesday to file and this issue is SERIOUS for the >future of free speech and non-corporate lifestyle choices. > >Jeme. >-- > ----------------- > Jeme A Brelin > jeme@brelin.net > ----------------- > [cc] counter-copyright > http://www.openlaw.org >http://www.nader2000.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 Fri Jul 28 09:35:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA10800 for dvd-discuss-outgoing; Fri, 28 Jul 2000 09:35:13 -0400 Received: from hotmail.com (f112.law9.hotmail.com [64.4.9.112]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA10797 for ; Fri, 28 Jul 2000 09:35:11 -0400 Received: (qmail 24636 invoked by uid 0); 28 Jul 2000 13:34:10 -0000 Message-ID: <20000728133410.24635.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Fri, 28 Jul 2000 06:34:10 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Fri, 28 Jul 2000 09:34:10 EDT 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 > > and this would inhibit progress of science and useful arts, not promote > > them. > >I didn't want to touch that third one, because I really don't know how >to argue it --- "promotes progress of science and the useful arts" is >so much in the eye of the beholder. The simple fact of a patent-like >monopoly grant clearly isn't enough, or the patent-grant language in >the Constitution (which has "promotes ... progress" as a requirement) >would be self-negating. I think it is important to realize that exclusive rights are granted to patent holders only once they have fully disclosed TO THE PUBLIC their invention. This disclosure is what leads to progress - any body can immediately take the idea and improve upon it (depending on the improvement, they might not be able to practice without license from the original patent holder, but that is a different issue). Under the P's reading, their right to access control doesn't require disclosure so it doesn't promote progress. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 09:52:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA11294 for dvd-discuss-outgoing; Fri, 28 Jul 2000 09:52:01 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id JAA11291 for ; Fri, 28 Jul 2000 09:51:59 -0400 Received: from jy01 (user-2inigq8.dialup.mindspring.com [165.121.67.72]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id JAA30586 for ; Fri, 28 Jul 2000 09:51:28 -0400 (EDT) Message-Id: <200007281351.JAA30586@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 28 Jul 2000 09:46:13 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <4.1.20000728080151.01fcfe90@law.harvard.edu> References: <20000728025151.14847.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu And will there be a brief on the recusal issue? This matter is producing fascinating exchanges between 2600 and Kaplan, and may become more interesting than the main show. Certainly more fast-paced mind-to-mind, authority- to-dissent, pummeling by Garbus et al and Kaplan. Marty alluded to the strategy in a few terse comments last Friday at lunch. Kaplan has issued 3 rapid rulings in the matter, to fend off what he sees as an attempt to undermine his authority if the suit. The filings and rulings read like a high-level debate between skilled battlers where personal attack is fair game. This second front, I think it is called in military affairs, is intended to parallel, perhaps surpass and wind, the main battle. And a gutsy offense which has deeply angered Kaplan, so it is reported, but not obvious in his rulings, unless you consider them by traffic analysis which does indeed suggest lashing out wildly. Any boxers on this list who can tell us about nose punching an opponent to take his/her measure, disrupt a gameplan, provide clues to vulnerability, induce emotional reaction, personally insult, undermine confidence -- all the tricks Kaplan has been trying on Garbus, now table turning. I notice on CourtWeb for SDNY that another federal judge, Whitman Knapp, just recently recused himself from an entertainment suit, declaring he has just learned of a conflict of interest. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 09:57:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id JAA11402 for dvd-discuss-outgoing; Fri, 28 Jul 2000 09:57:23 -0400 Received: from hotmail.com (f251.law9.hotmail.com [64.4.8.76]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id JAA11399 for ; Fri, 28 Jul 2000 09:57:21 -0400 Received: (qmail 67915 invoked by uid 0); 28 Jul 2000 13:55:02 -0000 Message-ID: <20000728135502.67914.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Fri, 28 Jul 2000 06:55:02 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Date: Fri, 28 Jul 2000 09:55:02 EDT 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 > >Here is how things work (I think): > >B. DeCSS in particular does not enable copying. > >Sure it does. I used DeCSS the other day (I needed to analyze the GOP >sequences of some movies to optimize time searching -- an excellent example >of fair use, by the way). The resulting files could be copied and played >without the original disc. DeCSS enabled this. Without DeCSS the copied >files would not play. DeCSS enables other things. Other hardware and >software enable copying. But it can't be denied that DeCSS enables copying. Your argument is quite weak, as you admit yourself ("Other hardware and software enable copying"). The DVD drive itself might as well be the devices that enables copying of the disc - without it, you can't do much. With it, a lot becomes possible, including copying a DVD without DeCSS. By extension your argument could be narrowed to the laser that is part of the DVD drive. It enables copying. Without it your copy scheme doesn't work. Must be that pits in reflective media are an access control technology and a laser beam is an illegal circumvention device (unless the MPAA sells you the laser!). This argument doesn't work because the laser, like DeCSS, is only one step in chain that YOU used to copy the disk - somebody else could do it with an etch and mold process, then acid becomes an illegal circumvention device? When you come right down to it, I could make similar arguments for virtually everything in existence that "enables copying." ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 10:46:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA15820 for dvd-discuss-outgoing; Fri, 28 Jul 2000 10:46:54 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA15814 for ; Fri, 28 Jul 2000 10:46:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id KAA15889 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 10:49:49 -0400 Date: Fri, 28 Jul 2000 10:49:44 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Message-ID: <20000728104944.A15493@eldritchpress.org> References: <4.1.20000726082248.021b5c28@law.harvard.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Wed, Jul 26, 2000 at 02:29:48PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 02:29:48PM -0400, Arnold G. Reinhold wrote: >... > An analogous situation in the Sommers context might be a shooting > case where the only evidence of injury is testimony by a forensic > pathologist hired by plaintiff who interviewed the attending > physician and testifies that the physician said the wound was caused > by a single shotgun pellet. The pathologist also admits that he was > offered the pellet itself but declined to take it. Would we admit his > hearsay evidence AND place the burden of proof on the defendant to > show it wasn't his shotgun? I don't think there is even that much evidence. The proper analogy would be if the plaintiff dropped dead "at or about the same time" as one defendant bought a shotgun. There has been no evidence of shotgun pellets in the corpse. > The recent posing of "X-Men" to the Internet proves that DVD rippers > are not needed because the DVD for "X-Men" has not yet been released. > Even if one accepts plaintiffs' claim that Divx movie files appeared > shortly after the ripper programs were posted, and interpret that as > suggesting a link, the evidence hardly rises to the standard in > Sommers, which is certainty. I don't think there is that much evidence. One movie has been testified to be traded, after hours of trying, and possible entrapment. The other offers could be bogus, we have no idea if there are real movies out there. Plaintiffs should be compelled to introduce that evidence. Their claim that they don't need to, because of automatic invocation of the anticircumvention clause without having to show copying, is neither fair nor in line with the only interpretation of the DMCA that makes sense in light of copyright law and the legislative history. It denies defendants the right to a fair trial and is hearsay. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 10:56:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA16220 for dvd-discuss-outgoing; Fri, 28 Jul 2000 10:56:59 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id KAA16217 for ; Fri, 28 Jul 2000 10:56:46 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id LAA15919 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:00:05 -0400 Date: Fri, 28 Jul 2000 11:00:00 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 Message-ID: <20000728110000.B15493@eldritchpress.org> References: <5A8391CA2D9ED311AFAA080009D982B10B1D48@mail2.onetouch.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D48@mail2.onetouch.com>; from hartman@onetouch.com on Wed, Jul 26, 2000 at 12:09:38PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Wed, Jul 26, 2000 at 12:09:38PM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > ...Gold: > > > > 7 They believe in the right to take this work without > > 8 any permission, but no one has the right to steal another > > 9 person's copyright to steal their intellectual property and > > 10 Congress may provide and has provided additional protection > > 11 for intellectual property when new technology has > > 12 substantially increased the risks of infringement. How can we parse this? "Steal" implies that it is against the copyright law, normal copyright infringement, and not "circumvention" or "unauthorized access" simply. (Otherwise the term has no meaning here--the analogy would instead be "breaking and entering".) And "additional protection" implies that it is NOT stealing or copying, but rather the pure form of technical decryption without any copying. Otherwise fair use would be an automatic protection under previously existing law. And "substantially increased the risks" indicates that plaintiffs need not show any actual infringement or "stealing" but only that technology has been developed that might have any use to circumvent or access, even if that technology has any other use that is authorized either by 1201 or Title 17. Plaintiffs obviously believe that they can confuse all these separate points and win the argument by making loud noises, waving of arms, and banging pots and pans together. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 11:20:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16562 for dvd-discuss-outgoing; Fri, 28 Jul 2000 11:20:27 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA16559 for ; Fri, 28 Jul 2000 11:20:24 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id IAA27143 for ; Fri, 28 Jul 2000 08:19:52 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma026790; Fri, 28 Jul 00 08:18:47 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id JAA09737; Fri, 28 Jul 2000 09:18:41 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Date: Fri, 28 Jul 2000 09:21:06 -0600 Message-ID: <000001bff8a7$731beca0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 Paul Fenimore wrote on Thu, 27 Jul 2000 21:44:48 -0600 > D. The sensible reading of the statute is that access is the commercial > transaction to acquire the work. CSS does not protect a transaction, > it regulates use _after_ the copyright owner's commercial interest is > done. In other words CSS has nothing to do with 1201-access control. Two points. First, this is a clear, well thought-out and consistent description of access. The fact the we are even arguing about the definition of access says that the statute is terribly flaw. Second, my only nit is the word -- "acquire." One reading of that would say that as long as I paid for the first viewing of a PPV work, I can crack the encryption. Maybe that's true -- if I PPV on cable, I can stick a tape in my VCR. Acquire can be used in the sense of "transmission" -- I can "acquire" the signal. Since the signal in F(t) I can't go crack the cable box at some later time because I acquired an earlier signal. What does this say about Divex (court spelling) type systems. You've moved the problem of defining "access" to defining "acquire." When do I "acquire" a Divex disk. Because the word connotes physical or local possession the ambiguity returns full force. I think another way to attack this is to apply the same clarification logic to the definition of "effective" -- that by "with the permission of the copyright owner" must mean "explicit, per-use permission requiring compensation" (or under other contractual obligation) and cannot be inferred to mean any permission past first sale for systems not requiring per use compensation. Good Stuff. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 11:25:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16664 for dvd-discuss-outgoing; Fri, 28 Jul 2000 11:25:05 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA16661 for ; Fri, 28 Jul 2000 11:24:57 -0400 Received: by aero.org id <17128-6>; Fri, 28 Jul 2000 08:24:13 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdMIAa02948; Fri Jul 28 08:24:01 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 08:23:53 -0700 Subject: Re: [dvd-discuss] IP Misuse Article (Guess where it came from?) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 08:23:52 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 08:24:02 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu I guess the projector analogy isn't an analogy...it's a precedence. History repeats itself. Different technology but the same intent. Bryan Taylor @eon.law.harvard.edu on 07/27/2000 09:28:58 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: [dvd-discuss] IP Misuse Article (Guess where it came from?) In an earlier issue of the Berkeley Techology Law Journal I found a great article on copyright misuse issues in the arena of computer programs: Misuse or Fair Use: That is the Software Copyright Question by James A.D. White http://www.law.berkeley.edu/journals/btlj/articles/12_2/White/html/reader.html Here's a nice excerpt: __________________________ The doctrine of intellectual property misuse first arose in the early 1900s in conjunction with the use of patents. In the 1917 case of Motion Picture Patents v. Universal Film Mfg. Co., the patentee licensed its patented movie projector on the condition that the film used in the machine must be purchased from the patentee (a type of tying arrangement). The Court found that: "[S]uch a restriction is invalid because such a film is obviously not any part of the invention of the patent in suit; because it is an attempt, without statutory warrant, to continue the patent monopoly in this particular character of film after it has expired, and because to enforce it would be to create a monopoly in the manufacture and use of moving picture films, wholly outside of the patent in suit and of the patent law as we have interpreted it." In short, the Court denied relief to the patentee because the licensing restrictions attempted to extend the scope of the film projector patent into the unpatented area of film. ___________________________ I went and looked up that case. The similarities to the DeCSS case are spooky! Here's a link to it: MOTION PICTURE PATENTS CO. v. UNIVERSAL FILM MFG. CO. 243 U.S. 502 (1917) http://caselaw.findlaw.com/scripts/getcase.pl?court=us&vol=243&invol=502 __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 11:38:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA16878 for dvd-discuss-outgoing; Fri, 28 Jul 2000 11:38:54 -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 LAA16875 for ; Fri, 28 Jul 2000 11:38:52 -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:2.21) with ESMTP id LAA12910 for ; Fri, 28 Jul 2000 11:38:23 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA29077; Fri, 28 Jul 2000 11:38:22 -0400 (EDT) Date: Fri, 28 Jul 2000 11:38:22 -0400 (EDT) Message-Id: <200007281538.LAA29077@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: <20000728133410.24635.qmail@hotmail.com> References: <20000728133410.24635.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > I think it is important to realize that exclusive rights are > granted to patent holders only once they have fully disclosed TO > THE PUBLIC their invention. This disclosure is what leads to > progress - any body can immediately take the idea and improve upon > it (depending on the improvement, they might not be able to > practice without license from the original patent holder, but that > is a different issue). Under the P's reading, their right to > access control doesn't require disclosure so it doesn't promote > progress. Yes, and so they'd have to argue that "access control monopoly" rights promote progress in a different way --- which they would, by arguing that their kind of "access control" is necessary for movie studios to be able to receive compensation for their work, and "progress of the useful arts" is promoted by having those works made available. (Or maybe not quite that, if the Judge they're in front of knows the difference between fine arts and useful arts, but hey, you get the point). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 11:53:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA17050 for dvd-discuss-outgoing; Fri, 28 Jul 2000 11:53:50 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAA17047 for ; Fri, 28 Jul 2000 11:53:37 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id LAA16052 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:56:48 -0400 Date: Fri, 28 Jul 2000 11:56:43 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000728115643.D15493@eldritchpress.org> References: <20000728135502.67914.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000728135502.67914.qmail@hotmail.com>; from haceaton@hotmail.com on Fri, Jul 28, 2000 at 09:55:02AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 09:55:02AM -0400, Harold Eaton wrote: > > >Here is how things work (I think): > > >B. DeCSS in particular does not enable copying. > > > >Sure it does. I used DeCSS the other day (I needed to analyze the GOP > >sequences of some movies to optimize time searching -- an excellent example > >of fair use, by the way). The resulting files could be copied and played > >without the original disc. DeCSS enabled this. Without DeCSS the copied > >files would not play. DeCSS enables other things. Other hardware and > >software enable copying. But it can't be denied that DeCSS enables copying. > > Your argument is quite weak, as you admit yourself ("Other hardware and > software enable copying"). The DVD drive itself might as well be the > devices that enables copying of the disc - without it, you can't do much. > With it, a lot becomes possible, including copying a DVD without DeCSS. I think the plaintiffs would argue that unauthorized access and circumvention occur with DeCSS even without copying. So why do they bring up copying? Because it is obviously a traditional infringement without authorization. But then the question of authorization emerges, and it is difficult for them to make that statement if the DeCSS copier is required in fact to have a licensed disc and player. Out problem might be that Kaplan was told that DeCSS does include copying as a feature. Defense didn't counter that this copying was not a necessary part of DeCSS but a feature of the operating system. The Windows DeCSS was needed, testimony showed, because of the UDF filesystem being workable on Windows but not Linux at the time. I think there was testimony that Windows could copy a file even without DeCSS--if not, then Chris DiBona's deposition makes that point. But plaintiffs want LiViD illegal because it circumvents their licenses, even if it does not include copying. So they can't tie copying to circumvention or unauthorized access. Otherwise, as I pointed out, Kaplan might rule DeCSS illegal but LiViD not. We need to make the point that DeCSS and copying are distinct, and that the latter is something the operating system does. The testimony that Windows DeCSS does copying shows only that in developing a player for Linux it was necessary at one time, for compatibility reasons allowed under 1201, to perform this copying. But copying was never the principal reason why DeCSS was developed. (We also need to explain more completely Goldstein's testimony about his web page statement that DeCSS did unauthorized copying.) And if copying did occur, it was certainly authorized--if that term has any meaning at all here--because it could not happen without an authorized disc and player. (Here Vault v Quaid is right on target.) From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:09:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17205 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:09:13 -0400 Received: from dial65.roadrunner.com (dial65.cybermesa.com [209.12.75.65] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA17202 for ; Fri, 28 Jul 2000 12:08:44 -0400 Received: (from paul@localhost) by dial65.roadrunner.com (8.8.7/8.8.7) id KAA00837 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 10:09:12 -0600 Date: Fri, 28 Jul 2000 10:09:10 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000728100910.A711@localhost> References: <20000727214447.B478@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from jtfrog@usa.net on Fri, Jul 28, 2000 at 01:08:26AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 01:08:26AM -0700, Jim Taylor wrote: > Paul Fenimore, on Thursday, July 27, 2000 8:45 PM, wrote > > >Here is how things work (I think): > >B. DeCSS in particular does not enable copying. > > Sure it does. I used DeCSS the other day (I needed to analyze the GOP > sequences of some movies to optimize time searching -- an excellent example > of fair use, by the way). The resulting files could be copied and played > without the original disc. DeCSS enabled this. Without DeCSS the copied ^^^^^^^^^^^^^^^^^^^^^^^^ > files would not play. DeCSS enables other things. Other hardware and ^^^^^^^^^^^^^^^^^^^^ > software enable copying. But it can't be denied that DeCSS enables copying. I agree that what I wrote is unclear, but I believe I can support the same claim for your example. Permit me to clarify my one-liner: - Any act of descrambling a DVD Video is /sufficient/ to conclude copying, descrambling is not /necessary/ to the conclusion that a copy was made. - Because DVDs are read-only media, the descrambling cannot be "done in place". So any act of descrambling must involve making a copy because of the distribution media involved (other factors might require this too). This is the origin of /sufficient/. - Scrambled data can be copied just the same as anything else. This is the origin of "not /necessary/". - Because CSS is pretextual cryptography, a full disk-image is fully functional. This is a distinct issue from whether the copy can be made or not. * I'm saying that DeCSS "does not enable" copying because to say the opposite, that DeCSS "does enable", might create the false impression that copying is impossible unless one has DeCSS. The ambiguity in what I wrote is whether "does not enable" refers to a single act of copying, or if it refers to the possibility of making copies at all. There is more here than I've discussed, because all descramblers "enable" the making of playable copies, but I'll leave that alone for the time being. Moving on to your comment: - Your example of using DeCSS in a chain of events that resulted in a playable copy does nothing from a fundamental technological view-point to distinguish it from any other chain of events whose end-point is playing the files. - On a legal basis, I think the relevant points for the chain of events you present and a chain without DeCSS are (i) an act of descrambling occurs in both chains of events and (ii) a second copy of the work was made in one of the chains. The functionality of the programs or devices that produced the second copy is legally disjoint from the issue of descrambling. The short form of the reason these are different "violations" is that 1201(a) and 1201(b) are distinct sections of the statute with different tests of effectiveness. * While I agree that denying use of a work after copying ("Without DeCSS the copied files would not play") solves some real-world problems (this is after all the way in which cryptography solves the privacy problem), **CSS is not a solution to the privacy problem**. CSS is pretextual cryptography. *All* the copies of a work are encrypted in the same way. So my claim is that "Without DeCSS the copied files would not play" is wrong. I can get the necessary key-material from a wide variety of sources. The supposedly "unplayable" copies are, in fact, playable. Not with DeCSS as the descrambler, but a descrambler could be written all the same. I have come to believe that saying, "encryption is effectively copy control", and then dropping "effectively" is a very dangerous thing. First, in the case of pretextual cryptography, the claim is totally false. Pretextual copying (everyone gets the same key) is never "effectively copy control". Second, in the case of encryption to solve the privacy problem, one can perhaps think of it as "copy control", but it is again wrong in a technical sense. One should never omit the "effectively". Third, encryption applied to a published work is _by definition_ not a solution to the privacy problem. This does not prove that cryptography has no role to play for published works, but because the plaintext is not a secret, one should be very careful in analyzing what real-world problem one is purporting to solve. That analysis must not rely on the assumption that the work is being protected. Even for non-pretextual cryptography (each work is encrypted using a different key or perhaps each person gets a key), the work is never protected. If the encryption is applied to a communications channel, the receiving end gets the plaintext. If the cryptography is used on stored-data, then so long as the work is published in any sense of the word, pushing the play button coughs up the plaintext. By definition, publication is relinquishing the secrecy of the plaintext. This is why I think it is *absurd* to read 17 U.S.C. 1201(a) as offering statutory protection to technological measure that protect the /work/ against copying. Such a thing is impossible. *Works* cannot be protected from copying after publication. Legislation that offers special status to those technological "protections" after publication of the underlying work is equivalent to legislation granting 22/7 special status as the value of pi. It just ain't so. While cryptography cannot protect published *plaintext* from copying, if "access to a work" in 1201(a) is talking about something other than the plaintext, then perhaps the statute is offering some other use of cryptography a special legal status. If non-pretextual encryption is applied to a communications channel, it is possible to prevent others from leaching a *usable* copy of the work. In this instance there is no pretense to protecting the plaintext (which is why EBX is broken by design, it claim to technologically protect the technologically unprotectable: a published work) from copying. The thing being protected is the commercial transaction. It is protected against "eavesdropping" and consequent failure to compensate the copyright owner. This is not a diatribe denouncing the impossibility of copyright, if that is how someone reads it, all I can say is: you've misread. I'm saying *technological measures* are incapable of preventing a published work from being copied. Technological measures that apply to a published work are a special subset of doomed-to-fail technology regulation. > >Examples of the consequences of P's reading of the statute (I noticed > >one that Bryan posted while I was away): > >1. Fair use is hosed. There is a wall all the way around. > >2. The guaranteed of non-copyright use is destroyed by a 10 MT nuclear > weapon. > >3. 1201 over-rides anti-trust. > >4. Authority of the copyright owner is totally broken. > >5. Patent-like control to authors. > >6. Unlimited times under the monopolies clause. > >7. Ex post facto delegation to private parties. > >8. Erases the difference between 1201(a) and 1201(b). > >9. Voids the statutory provision in 1201(c) that were enacted > >simultaneously with 1201(a)(3)(B). > > For what it's worth, I think these are excellent points except for 4 > (everyone keeps going on about authorizing the user, but plaintiffs approach > is to authorize the use). I'll keep thinking about your point, but I'm having a hard time seeing why the End-User License Agreements that disclaim the conveyance of an interest in any copyright work don't sink their theory. What am I missing here? Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:16:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17329 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:16:18 -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 MAA17326 for ; Fri, 28 Jul 2000 12:16:17 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Jul 2000 09:16:00 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D58@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Source code versus Object Code (executable) Date: Fri, 28 Jul 2000 09:15:59 -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: Jim Miller [mailto:rmiller@duskglow.com] > Sent: Thursday, July 27, 2000 7:07 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Source code versus Object Code (executable) > > > On Thu, 27 Jul 2000, Paul Fenimore wrote: > > > Of course, in this reading, the P's suit is out on its ear because > > it doesn't protected "commercial access", nor does the crypto isn't > > attempting to solve any problem crypto is capable of solving. > > > Sorry to nitpick, but what does this mean? This is probably > the most amusing > sentence structure I've ever seen. ;-) > > as one lawyer said: "Objection! That sentence should be > taken out and shot!" > I believe the upshot is that the use of crypto in the CSS scheme is obfuscatory -- smoke and mirrors -- but in actuality accomplishes nothing due to the manner in which it has been applied. -- -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 Jul 28 12:18:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17431 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:18:56 -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 MAA17428 for ; Fri, 28 Jul 2000 12:18:54 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Jul 2000 09:18:26 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D59@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: Fri, 28 Jul 2000 09:18:22 -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: Jim Taylor [mailto:jtfrog@usa.net] > Sent: Friday, July 28, 2000 12:59 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players > and copying to disk > > > David A. Wagner, on Wednesday, July 26, 2000 6:48 PM, wrote > > > >By the way, on many computers, if you don't have enough > physical memory > >(or if you switch tasks to another application while the DVD > player is > >running, and that other application uses a fair amount of > memory), I'd > >imagine that the unencrypted content could easily be swapped or paged > >out to hard disk, unless the software players take > extraordinary measures > >to prevent this. (I know a little about it, because as a > cryptographer, > >one has to worry about keys being swapped or paged to disk > and staying > >there for a while. Every cryptographer I've spoken says it > is hard, if > >not impossible, to reliably prevent this on most Windows platforms.) > > As I recall, the CSS license explicitly requires that > decrypted content be > kept in protected memory and not paged to disc. Licensed > decoders must take > steps to prevent memory buffers from being swapped out. That still leaves the security up to contractual obligations, not technical barriers. -- -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 Jul 28 12:20:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17486 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:20:00 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA17483 for ; Fri, 28 Jul 2000 12:19:58 -0400 Received: from jy01 (user-2inigq8.dialup.mindspring.com [165.121.67.72]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id MAA11168 for ; Fri, 28 Jul 2000 12:19:28 -0400 (EDT) Message-Id: <200007281619.MAA11168@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Fri, 28 Jul 2000 12:14:11 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: [dvd-discuss] DVD CCA Moves on MPAA v 2600 In-Reply-To: Mime-Version: 1.0 Content-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.nysd.uscourts.gov/courtweb/pdf/D02NYSC/00-07512.PDF UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - x UNIVERSAL CITY STUDIOS, INC., et al., Plaintiffs, -against- 00 Civ. 0277 (LAK) SHAWN C. REIMERDES, et al., Defendants. - - - - - - - - - - - - - - - - - - - - - x ORDER LEWIS A. KAPLAN, District Judge. DVD Copy Control Assocation, Inc. ("CCA"), has moved to intervene in this action for certain limited purposes. In view of the pendency of that motion, 1. CCA shall file any papers in response to defendants’ motion no later than 5 p.m. on August 2, 2000. Said papers shall be received provisionally, i.e., subject to a decision on CCA’s motion to intervene. 2. Any opposition to CCA’s motion to intervene shall be filed no later than 5 p.m. on August 2, 2000. SO ORDERED. Dated: July 28, 2000 _______________________________________ Lewis A. Kaplan United States District Judge From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:20:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17533 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:20:56 -0400 Received: from dial65.roadrunner.com (dial65.cybermesa.com [209.12.75.65] (may be forged)) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA17530 for ; Fri, 28 Jul 2000 12:20:53 -0400 Received: (from paul@localhost) by dial65.roadrunner.com (8.8.7/8.8.7) id KAA00851 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 10:21:22 -0600 Date: Fri, 28 Jul 2000 10:21:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000728102120.B711@localhost> References: <20000728015934.19930.qmail@web512.mail.yahoo.com> <20000727214447.B478@localhost> <20000728011221.G14138@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000728011221.G14138@eldritchpress.org>; from eldred@eldritchpress.org on Fri, Jul 28, 2000 at 01:12:21AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 01:12:21AM -0400, Eric Eldred wrote: > On Thu, Jul 27, 2000 at 09:44:48PM -0600, Paul Fenimore wrote: > > > > So, I think the P's argument go like: > > 1. CSS is prophylactic to infringement. Prophylaxis is 'access control'. > > 2. Circumvention (a)(1) and trafficking (a)(2) do not involve > > infringement, they involve their technological suppression, > > consequently we never get to contributory infringement for the > > same reason we never get to fair use. > > 3. I (pretending I'm the P's) need to show that CSS prevents copying, > > and that DeCSS enables copying because that is the bit about > > showing that CSS is technological suppression/prophylaxis of infringement. > > 4. So the bit in 1201(c)(2) about not enlarging contributory or vicarious' > > is just there as a safe-guard; it doesn't apply because access comes > > before use, or it applies to (b). > > 5. There is no other sensible reading of the statute. > > > > Their argument is complete bull-shit. > > > > I think Samuelson's discussion of Vault v Quaid is particularly > important. She exposes the conflict between the careful > exceptions and the broad protection against the technology > needed to act under the exceptions. Her rendering of the > legislative history is illuminating. > > http://www.law.berkeley.edu/journals/btlj/articles/14_2/Samuelson/html/reader.html [ ... excerpt of Samuelson omitted ... ] > If Kaplan can't craft an interpretation of 1201(c)(2) to meet > the exceptions for fair use then he will have to throw out the > whole bill and have Congress rewrite it. > > It seems plain that the MPAA doesn't want to have Kaplan > observe that the only use of DeCSS is fair use, with a valid > DVD disc and a valid DVD player. > > But I agree with your point 5 that there is no other sensible reading > of the statute. So let's throw it out. Actually, I was role-playing. I don't believe that is the only plausible reading, although I did went I started work on project. I think defining "access to a work" as "commercial acquisition of a work" probably gives 1201(a) a sensible reading. It becomes 47 U.S.C. 605 for the Internet. 1201(b) I'm not so sure about --- it is explicitly control of technology. In my view, 1201(a) is control of cryptography keys, not technology. I'm not saying there are no ground for objecting to paracopyright, I'm saying they are very different from my initial objections. I haven't read nearly as much of the Congressional record as Robert Thau, but the bit I have read indicates to me: 1. Congress was presented with argument about "digital" works and "electronic" works. Just as Mr. Gold can't really tell the difference and can't keep ease of distribution distinct from the absence of generational loss, it is possible that Congress couldn't keep the two straight either. If they did keep the points straight, then that is support for the position that 1201(a) is about commercial acquisition, and not the regulation of every use. 2. One can deal with particular aspects of "electronic works" (by which people invariably mean that the _copy_ of the work is "electronic" in some sense). One can solve the "problem" of there being no copy of the work that changes hands. Because a copy changing hands has been the customary way to "enforce" the receipt of payment from the audience, electronic transmission presents a new scenario for compensation of the copyright owner. It does not present a qualitatively different situation regarding copying, it is an incremental improvement in low-cost copying. 3. There isn't anything to be done about "digital" works (i.e. a digital encoding). The idea of using discrete symbols to encode a work is as old as alphabetic language, and probably older. Copyright was _invented_ to deal with the first technology for mass-producing works encoded using discrete symbols: the printing press. Copyright started life with "digital" works. (Although its purpose was not to promote progress, it was quid pro quo to get the printing industry on board for the English Crown's Official Censorship. The Statute of Anne didn't happen until 1710.) Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:24:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA17787 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:24:20 -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 MAA17784 for ; Fri, 28 Jul 2000 12:24:19 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Jul 2000 09:24:06 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D5A@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Shotgun Analogy Date: Fri, 28 Jul 2000 09:24:02 -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: Jim Miller [mailto:rmiller@duskglow.com] > Sent: Thursday, July 27, 2000 11:01 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] Shotgun Analogy > > > I think the answer to that is simple: > > No law shall be passed that abridges the right to personal > posession of > information acquired in good faith, regardless of form or > medium, except in > circumstances which immediately and presently affect the > safety of the public. > No law shall be passed that restricts transfer, posession, or sale of > information where such action would promote the causes of > science and research. This is too wide open. If I steal trade secrets on their latest medicines from Upjohn, can I use them? By this phrasing I can even though currently if it can be shown that I stole them (instead of finding the recipie on the street) I can be prosecuted. > No law shall be passed that restricts the reasonable personal use of > information, except where such use would affect the safety of > the public. For > the purposes of this amendment, any legal entities other than > a corporeal human > being shall not be considered a person. Congress is granted > the power to pass > laws restricting commercial use of information where such use > does not conflict > with the rights granted in this Amendment. > > In other words: > Once you acquire information, you can do what you want with > it, as long as it > doesn't harm others and the use is strictly personal. > Close. Once you -legitimately- aquire information, ... -- -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 Jul 28 12:32:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18465 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:32:45 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18460 for ; Fri, 28 Jul 2000 12:32:42 -0400 Received: by aero.org id <17112-2>; Fri, 28 Jul 2000 09:32:02 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdNDAa00234; Fri Jul 28 09:31:30 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 09:13:43 -0700 Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 09:13:41 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 09:31:39 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu You mention another aspect of our "intellectual property" system that is messed up and needs fixing. Inventors must make a full disclosure sufficient for someone skilled in the art to create the device. Many of the patents I've read over the last few years do not. "Harold Eaton" @eon.law.harvard.edu on 07/28/2000 06:36:27 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) > > and this would inhibit progress of science and useful arts, not promote > > them. > >I didn't want to touch that third one, because I really don't know how >to argue it --- "promotes progress of science and the useful arts" is >so much in the eye of the beholder. The simple fact of a patent-like >monopoly grant clearly isn't enough, or the patent-grant language in >the Constitution (which has "promotes ... progress" as a requirement) >would be self-negating. I think it is important to realize that exclusive rights are granted to patent holders only once they have fully disclosed TO THE PUBLIC their invention. This disclosure is what leads to progress - any body can immediately take the idea and improve upon it (depending on the improvement, they might not be able to practice without license from the original patent holder, but that is a different issue). Under the P's reading, their right to access control doesn't require disclosure so it doesn't promote progress. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:36:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA18885 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:36:48 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA18882 for ; Fri, 28 Jul 2000 12:36:45 -0400 Received: by aero.org id <17216-5>; Fri, 28 Jul 2000 09:35:40 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGCAa00234; Fri Jul 28 09:30:07 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 09:17:31 -0700 Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 09:17:30 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 09:30:16 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Agreed. The plaintiffs case is a lot of smoke, mirrors, and hysteria. Interesting point. "subtantial increased risk of infringement"? Risk of infringement from DVD copying is considerably less than VCR copying or CD copying. More hysteria. Eric Eldred @eon.law.harvard.edu on 07/28/2000 07:58:28 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 On Wed, Jul 26, 2000 at 12:09:38PM -0700, Richard Hartman wrote: > > > -----Original Message----- > > From: Paul Fenimore [mailto:fenimore@roadrunner.com] > ...Gold: > > > > 7 They believe in the right to take this work without > > 8 any permission, but no one has the right to steal another > > 9 person's copyright to steal their intellectual property and > > 10 Congress may provide and has provided additional protection > > 11 for intellectual property when new technology has > > 12 substantially increased the risks of infringement. How can we parse this? "Steal" implies that it is against the copyright law, normal copyright infringement, and not "circumvention" or "unauthorized access" simply. (Otherwise the term has no meaning here--the analogy would instead be "breaking and entering".) And "additional protection" implies that it is NOT stealing or copying, but rather the pure form of technical decryption without any copying. Otherwise fair use would be an automatic protection under previously existing law. And "substantially increased the risks" indicates that plaintiffs need not show any actual infringement or "stealing" but only that technology has been developed that might have any use to circumvent or access, even if that technology has any other use that is authorized either by 1201 or Title 17. Plaintiffs obviously believe that they can confuse all these separate points and win the argument by making loud noises, waving of arms, and banging pots and pans together. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 12:39:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id MAA19352 for dvd-discuss-outgoing; Fri, 28 Jul 2000 12:39:03 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id MAA19348 for ; Fri, 28 Jul 2000 12:39:01 -0400 Received: by aero.org id <17169-1>; Fri, 28 Jul 2000 09:37:15 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdJEAa00234; Fri Jul 28 09:32:48 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 09:10:00 -0700 Subject: Re: [dvd-discuss] Let's not miss another deadline! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 09:09:59 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 09:32:50 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. The law does permit monopolies. IT is the abuse of monopoly they do not. As far as I know, the Zambonies still have a monopoly on the machines that resurface ice arenas. The market for ice arena machines is so small that no one really wants to take it from them. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:01:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA21608 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:01:18 -0400 Received: from eeyore.cc.uic.edu (eeyore.cc.uic.edu [128.248.171.51]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA21544 for ; Fri, 28 Jul 2000 13:01:15 -0400 Received: from uic.edu (johns.cc.uic.edu [128.248.5.134]) by eeyore.cc.uic.edu (8.9.3/8.9.3) with ESMTP id MAA23152 for ; Fri, 28 Jul 2000 12:00:45 -0500 (CDT) Message-ID: <3981BC07.3454F304@uic.edu> Date: Fri, 28 Jul 2000 11:59:51 -0500 From: John Schulien X-Mailer: Mozilla 4.72 [en] (X11; U; Linux 2.2.15 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Could the judge, in effect, "GPL" DeCSS? 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 There's another completely wild possibility. The judge could find that: 1. DeCSS, when distributed as source code, is expressive, and protected by the First Amendment. 2. DeCSS, when distributed as a combination of source and object code, is also expressive, because the object code provides a functional demonstration of the source code to someone without the specific resources required to compile the source code. 3. DeCSS, when distributed as object code only, tips the balance so far away from expression, and towards functionality, that the program becomes device-like, and is not protected by the First Amendment. The judge could therefore order that DeCSS is illegal to distribute unless the source code is included as part of the distribution, or made available by the person performing the distribution on request. The interesting thing about such an interpretation is that it is essentially a description of the GPL -- the Gnu Public License, created by Richard Stallman, and available at www.gnu.org. A simplified description of the GPL is that when software is released under the GPL, the copyright is retained by the author, and used as the legal basis of an extremely permissive license which closely mimics the public domain. The most significant difference between a GPL licensed program and a program in the public domain, is the critical restriction that distribution of a GPLed program, or derivitave, is only permitted so long as the program is distributed along with its source code. Such a finding would provide a strong legal incentive for authors of "controversial" software to release their works under the GPL. All this said, I think that finding DeCSS to be protected speech in all forms would be a better outcome, but this is one possible -- and I think a very interesting -- middle ground -- that would significantly change the legal landscape in an unexpected way. - John From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:07:44 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23308 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:07:44 -0400 Received: from hotmail.com (f112.law9.hotmail.com [64.4.9.112]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA23013 for ; Fri, 28 Jul 2000 13:07:39 -0400 Received: (qmail 70274 invoked by uid 0); 28 Jul 2000 17:06:36 -0000 Message-ID: <20000728170636.70273.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Fri, 28 Jul 2000 10:06:36 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Date: Fri, 28 Jul 2000 13:06:36 EDT 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 rst writes: >Which suggests either culling out of my arguments (suggestions?), or >separate briefs on other topics Your paper has a rather lengthy quote from Sen. Ashcroft which appears twice. The excerpt beginning "By way of example" was completely duplicated on an earlier page. Your surrounding discussion is slightly different, but there is definite room to condense this. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:11:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA23484 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:11:59 -0400 Received: from dial168.roadrunner.com (sf-du168.cybermesa.com [209.12.75.168]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23479 for ; Fri, 28 Jul 2000 13:11:50 -0400 Received: (from paul@localhost) by dial168.roadrunner.com (8.8.7/8.8.7) id LAA01044 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:12:22 -0600 Date: Fri, 28 Jul 2000 11:12:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Message-ID: <20000728111220.C711@localhost> References: <200007280404.AAA27354@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: ; from jtfrog@usa.net on Fri, Jul 28, 2000 at 12:56:34AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 12:56:34AM -0700, Jim Taylor wrote: > Comments on Robert Thau's article > (http://www.ai.mit.edu/people/rst/dmca/auth/auth.html), in my role as > devil's advocate: > > "There is never any case in which the two implementations do anything > different. How, then, can the plaintiffs claim that one of these things is > providing an access check which is bypassed by the other?" > > The critical flaw in this approach is that the plaintiffs don't claim an > access check. They claim that CSS is a protection mechanism, and that the > difference is that licensed implementations protect the decrypted video from > being copied, while DeCSS makes the decrypted streams easily copyable to > other media or distribution systems (such as DivX). That's a big difference. > No one can deny the fact that DeCSS *can* be used in the process of > circumvention. I deny it. CSS is not protecting commercial access to a work. It is protecting every access to a work, which is not the thing to which 1201(a) grants a special status. To grant special status to measures protecting all access to a work, rather than commercial access, gets the court the list of horribles: 1. Fair use gone. 2. Non-copyright no longer guaranteed. 3. 1201 over-rides anti-trust. 4. Authority of the copyright owner is totally broken. (Modulo Jim Taylor's objection that I'm wrong on this one). 5. Patent-like control to authors. 6. Unlimited times under the monopolies clause. 7. Ex post facto delegation to private parties. 8. Erases the difference between 1201(a) and 1201(b). 9. Voids the statutory provisions in 1201(c) that were enacted simultaneously with 1201(a). > Without DeCSS or a similar program, a typical computer owner > would not be able to directly copy a disc or copy the files on it. It may be helpful to point out that without DeCSS or another descrambler, there would be no way to say that material on DVDs had been published. > The only > defense against this fact is that DeCSS has other purposes, but the article > doesn't adequately make this point. I think the distinction between descrambling and copying is relevant. Scrambling is a measure that applies to a work. Measures that protect access to works are covered by 1201(a). Copying is an exclusive right, measures which limit the exercise of exclusive rights are covered by 1201(b). > "...contorted interpretation of the law which leads the plaintiffs to claim > that CSS is providing access control despite the fact that in the ordinary > course of its operation, it can never deny access" > > The issue of access control is not that it is denied or not, only that > access is limited to a licensed system that takes steps to protect the > plaintext content from being copied. This representation of the plaintiff's > interpretation is inaccurate. Yes. The plaintiffs' position is one of bait-and-switch. (Bait) See the pretty technological measure that protects the work from being viewed? (Switch) Now plug your ears while we start talking about the contractual limitations on player design. It is those contractual limitations that hinder, but do not prevent, copying. Unplug your ears just in time to hear "prevent, copying". Thank you for your cooperation. > "...perform some explicit test that the user is authorized to view a > particular work..." > > This is only one interpretation of DMCA, which says nothing about the *user* > being authorized. DMCA refers only to gaining access to a work. An > alternative interpretation is that CSS authorizes the access--or the *use*, > if you will--not the user. From this viewpoint the argument and supporting > examples of pay per view and certificates have no relevance. As the > plaintiffs admit, there is no license with the user. This is because the > user is not involved in the authorization process -- only the devices and > media are. I must be missing something big here. I though the player-EULA kills this theory. > The article then points out that this is indeed the point of view of the > plaintiffs. It then attacks CSS as "false" encryption (a mostly irrelevant > point, which it admits near the end of the section) and as something that > does not check if the viewer is authorized to view a work. Once again, the > *viewer* is not what is being authorized. An effective argument must attack > this claim of the plaintiffs, not veer off into the wrong authorization > topic. But *acts* of descrambling are authorized. Given that CSS provides no mechanism to tell one act from another, are the P's "in deep legal water"? There mechanism can't tell one act from another, so why is there any claim of "requiring" authority of the copyright owner? In my opinion here is a real blunder on Kaplan's part: 1. 106-authority operates with the say-so of the copyright owner. 2. 1201 mentions authority of the copyright owner. 3. 1201-authority is the say-so of the copyright owner. I say: A. 1201 says a _technological measure_ must _require_ the authority of the copyright owner. B. The say-so of the copyright owner does not _require_ that any technological measure do anything. I can yell at my computer all day, and until it understands voice commands (which it doesn't), nothing will happen. C. 1201-authority has to be something that affects a technological measure, it can't simply by the contractual say-so that is authority in 106. > The next section (encryption not required for access control) makes way too > much of nitpicky points of semantics. It doesn't matter how CSS works. It > was clearly designed for the purpose of access control, so it's very hard to > argue that it doesn't qualify. Macrovision is just some fiddling with video > pulses, yet it's explicitly named in DMCA. CSS applies to *works*, which puts it in the domain of 1201(a). The claim that CSS is prophylaxis to infringement puts it in the domain of 1201(b). The P's have to pick one or the other when filing the suit. They have picked 1201(a), so we should kill claims of prophylaxis with arguments of law. Statements of fact are possible to, in order to back up the position that the P's are asking for an interpretation that has Congress legislating the impossible. Macrovision does not apply to *access to a work*, it is in the more general class of technological measures covered by 1201(b) that "restricts ... the exercise of a right of a copyright owner". > "without such a grant of authority, the plaintiffs claim, ``decryption'' is > illegal" -- Excellent point, if you can show that the plaintiffs truly > claim this. There's some meat here, but it gets thrown away again by > claiming that "authority must be granted to the party performing the > decryption." No. As the article itself admits, this is not the plaintiff's > position, and nothing in the article has attacked the plaintiff's real > position. > > Next section (access controlled is access to a market). Hard to find fault > with any of these arguments. > > Next section (Inconsistent with Congressional intent). Brilliant. Excellent > quotes from congressmen, aimed right at the heart of the argument. And I believe it supports the previous point. > Remainder of article likewise hard to find fault with, other than a weak > argument of "One could build a DVD player which did not do CSS, but it would > render so few disks as to be effectively useless". There are thousands of > non-CSS discs on the market. A non-CSS player could be quite useful in a > number of environments such as business or education. The focus should > instead be on the inability to play a considerable number of commercially > available titles. And on the point that without descrambling of some kind there is no way to say that the other disks have been published. > My two cents: Condense all the stuff about authorizing users to one or two > short paragraphs. The examples of authorization schema are beside the point. > They all involve authorizing the user. As the article points out at the end > of the authorization section, the plaintiffs have adopted another reading. > So why is so much of the article devoted to a different reading? Get rid of > all the irrelevant arguments about false encryption and pretextual > authorization (it's a lovely phrase, but it's not germane). Beef up the part > about plaintiffs claiming (or even implying) that decryption is illegal. > Then I think you'll have something that's right on target. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:15:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24010 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:15:33 -0400 Received: from dial168.roadrunner.com (sf-du168.cybermesa.com [209.12.75.168]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA23974 for ; Fri, 28 Jul 2000 13:15:30 -0400 Received: (from paul@localhost) by dial168.roadrunner.com (8.8.7/8.8.7) id LAA01052 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:16:00 -0600 Date: Fri, 28 Jul 2000 11:15:59 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728111559.D711@localhost> References: <20000728025151.14847.qmail@hotmail.com> <200007281051.GAA28230@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: <200007281051.GAA28230@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 28, 2000 at 06:51:48AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 06:51:48AM -0400, Robert S. Thau wrote: > Jeme A. Brelin writes: > > My personal input to Robert regarding his authority paper: > > I'd like to suggest that you soft pedal the issues of anti-trust. Focus > > on the suit at hand and how DeCSS doesn't circumvent because no reading of > > the law that would make that true is sensible. Remember that this is > > going to be read by Kaplan as the final decider of law. Bring up the > > points for the purpose of entering the record as basis for appeal, but > > don't play it up so much that he thinks he's being set up for recusal > > grounds, get me? > > Ummm... I'm not sure what to make of this. The only deliberate > mention of antitrust law in the piece is at the end of the "access to > a market" section: > > Before the passage of the DMCA, this would have been somewhat > questionable; indeed, it has at least the appearance of an illegal > tying arrangement. But that is not what we wish to investigate here > --- we simply wish to know if this is the sort of arrangement that > Congress meant to protect when they passed this law. So, let us see. > > ... which segues into the discussion of Congressional intent. And the > point of it is actually to clarify that I'm *not* arguing that the > plaintiffs are guilty of an antitrust violation, but instead arguing > based solely on the DMCA and its legislative history. (Kaplan says > the antitrust argument would make no sense, and on this point, I'm > inclined to believe him, though that film projector case from days > gone by might change things a bit). > > I do talk about monopolies quite a bit, but "monopoly" and "antitrust > violation" are not synonymous; I believe antitrust law actually > *permits* certain forms of monopoly, like a drug company's monopoly > over the sole cure for some disease (secured by patent). There are legal monopolies outside the scope of the monopolies clause. The question is if the monopoly arose or is maintained by anti-competitive behavior (in part?). Same as your disclaimer, "I am not an antitrust expert". Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:16:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24283 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:16:46 -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 NAA24279 for ; Fri, 28 Jul 2000 13:16:45 -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:2.21) with ESMTP id NAA24388 for ; Fri, 28 Jul 2000 13:16:13 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA29574; Fri, 28 Jul 2000 13:16:12 -0400 (EDT) Date: Fri, 28 Jul 2000 13:16:12 -0400 (EDT) Message-Id: <200007281716.NAA29574@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728170636.70273.qmail@hotmail.com> References: <20000728170636.70273.qmail@hotmail.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Harold Eaton writes: > rst writes: > >Which suggests either culling out of my arguments (suggestions?), or > >separate briefs on other topics > > Your paper has a rather lengthy quote from Sen. Ashcroft which appears > twice. The excerpt beginning "By way of example" was completely duplicated > on an earlier page. Your surrounding discussion is slightly different, but > there is definite room to condense this. Already fixed in last night's round of edits (you may need to hit "refresh" in your browser to see the new version); the 21-page count was after that. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:17:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24348 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:17:03 -0400 Received: from dial168.roadrunner.com (sf-du168.cybermesa.com [209.12.75.168]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24343 for ; Fri, 28 Jul 2000 13:17:00 -0400 Received: (from paul@localhost) by dial168.roadrunner.com (8.8.7/8.8.7) id LAA01061 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:17:33 -0600 Date: Fri, 28 Jul 2000 11:17:33 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728111732.E711@localhost> References: <20000728050344.9227.qmail@web515.mail.yahoo.com> <200007281105.HAA28254@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: <200007281105.HAA28254@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 28, 2000 at 07:05:30AM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 07:05:30AM -0400, Robert S. Thau wrote: > Bryan Taylor writes: > > One approach is to first adjust the outline to reflect post-trial > > issues and tastes, and then use Robert's document to fill in the > > appropriate pieces, and write the rest to fill the gaps. > > > > Another approach might be to ditch the outline and have people write a > > bunch of short essays on various topics and then try to merge them > > together. This has the advantage of getting ideas on paper quickly, but > > the disadvantage that somebody will have to make some tough decisions > > when we try to merge things, and it might make for some incoherent > > flow. > > FWIW, when I LaTeX the source to the thing right now, it comes to 21 > printed pages, plus the table of contents, though I haven't tried > dinking the margins. I believe the limit on length of briefs is > 30-odd pages, so there isn't much room in my document as it stands for 35 page limit for law briefs. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:19:19 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24593 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:19:19 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24590 for ; Fri, 28 Jul 2000 13:19:17 -0400 Received: by aero.org id <17161-5>; Fri, 28 Jul 2000 10:18:33 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdSPAa00234; Fri Jul 28 10:17:58 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 08:52:52 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 08:52:51 AM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 10:18:04 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes information is becoming more important. For that reason, a lot of people have been acting to make it more of a commodity to be hoarded rather than shared: trade secret acts, extensions of patents, dilution of the standards for patenting, extension of copyright periods well in excess of what benefits an individual or even his children. I don't mean to belabor this point but If you haven't read their philosopies don't dismiss them because you can't imagine they they could understand the sheer importance of information. You would find that they did. That's the beauty of abstract thought-it tends to transcend time. The importance of information has not change. You would also find that their intention was benefit society rather than enrich individuals or corporation ad infinitum. This is why they limited copyrights and patents to 14yrs.That seems to be pretty much what we are dealing with here with the DeCSS and DMCA today. Constitutional Amendments? - N O N E. The Constitution is a framework for Government. Congress sets up the laws which determine how this is implemented. The problem is fixed by changing the laws. That means getting the message through to Congress. The message: These changes to patent laws (1986), copyright (1998), and DMCA do NOT further the public good but enrich a special interest. BTW - When Jefferson was minister to France, he bought and shipped every book he could find on governments to James Madison. I doubt seriously that Consilgere@cs.com@eon.law.harvard.edu on 07/27/2000 10:43:10 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy I can see your point. But I think a preponderance of the evidence would suffice as far as proving trade secrets were broken illegally, but you've got the burden of proof in the right place. And ok, maybe the plain nature of work has changed. But you can't deny knowledge is becoming more and more important, and physically doing something (and by that I meant manual labor in particular, in the old days is was man's work, now its chump's work) Now for the big question: what sort of constitutional amendments would we need to make so that we can stop relying on philosophies from people who couldn't have imagined the sheer importance of information in a cyberspace age? From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:21:20 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24660 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:21:20 -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 NAA24657 for ; Fri, 28 Jul 2000 13:21:19 -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:2.21) with ESMTP id NAA24920 for ; Fri, 28 Jul 2000 13:20:50 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id NAA29597; Fri, 28 Jul 2000 13:20:49 -0400 (EDT) Date: Fri, 28 Jul 2000 13:20:49 -0400 (EDT) Message-Id: <200007281720.NAA29597@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728111559.D711@localhost> References: <20000728025151.14847.qmail@hotmail.com> <200007281051.GAA28230@soggy-fibers.ai.mit.edu> <20000728111559.D711@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > There are legal monopolies outside the scope of the monopolies clause. Yes --- those that arise in the marketplace (the Zambonis may be a good example here). But that's not what's going on with CSS--- the plaintiffs claim that they have, in effect been *granted* a monopoly by Congress. And there are only certain kinds of monopolies that Congress can grant --- which is the point of that analysis. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:23:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24771 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:23:35 -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 NAA24768 for ; Fri, 28 Jul 2000 13:23:34 -0400 Message-ID: <20000728172231.6450.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 28 Jul 2000 10:22:31 PDT Date: Fri, 28 Jul 2000 10:22:31 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Let's not miss another deadline! 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 --- John Young wrote: > And will there be a brief on the recusal issue? The judge has a duty to self-recuse, so all you need to do at the district level is make the arguements that prove the conflict of interest. However, I can safely predict that there will be a major issue during appeals on recusal. Kaplan's statement of record is that "DVD matters" is not sufficient for recusal. The 5th Cir. ruling that I posted yesterday casts serious doubt on this, but that's an arguement for the appeal. If we present arguments that raise the issue of "DVD antitrust matters", then he'll have to further modify his position. I suspect he'll change it to "DVD encryption-related antitrust matters". The more contorted his standard becomes, the more likely it'll be bounced on appeal. To my knowledge there are only 3 cases on "DVD matters" out there, so the judges comparison to "personal injury matters" is pretty weak. > I notice on CourtWeb for SDNY that another federal judge, Whitman > Knapp, just recently recused himself from an entertainment suit, > declaring he has just learned of a conflict of interest. None of the cases that I've search site recusals as precedent to decide when recusal is necessary. I'm not sure why -- it seems like a reasonable thing to do. (Lawyer insight requested!) Also many recusal motions are totally frivolous (criminals love to make frivolous claims). That is why appeals court rulings reversing a denial of recusal are as valuable as they are rare. It just so happens that a very applicable one happened this week in the 5th Circuit in Panama v. American Tobacco. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:28:00 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24838 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:28:00 -0400 Received: from dial80.roadrunner.com (sf-du80.cybermesa.com [209.12.75.80]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA24829 for ; Fri, 28 Jul 2000 13:27:57 -0400 Received: (from paul@localhost) by dial80.roadrunner.com (8.8.7/8.8.7) id LAA01223 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:28:29 -0600 Date: Fri, 28 Jul 2000 11:28:28 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? Message-ID: <20000728112828.F711@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from mingo@elte.hu on Fri, Jul 28, 2000 at 01:24:54PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 01:24:54PM +0200, Ingo Molnar wrote: > > > > B. DeCSS in particular does not enable copying. > > > > Sure it does. I used DeCSS the other day (I needed to analyze the GOP > > sequences of some movies to optimize time searching -- an excellent > > example of fair use, by the way). The resulting files could be copied > > and played without the original disc. DeCSS enabled this. Without > > DeCSS the copied files would not play. DeCSS enables other things. > > Other hardware and software enable copying. But it can't be denied > > that DeCSS enables copying. > > this is a subtle misconception. DeCSS does not *enable* copying. From the > pure technical side of things this is what happens: > > there are 4 layers of data: > > - the DVD medium > - the (unprotected) UDF filesystem on the DVD medium > - VOB files in the UDF filesystem > - the digital MPEG content embedded in the VOB file, often encrypted via > the CSS algorithm [ ... a good explanation clipped ... ] > While this fact has no relevance wrt. DMCA 1201, it probably has a > relevance wrt. the First Amendment arguments: because IMO the DMCA 1201 > forbids 'format conversions' as well, if *anyone* uses *any* format to > restrict access to a copyrighted work, then conversion from this content > format is automatically forbidden by the DMCA. This IMHO is obviously > unconsitutional because is restrains speech just for the purpose of access > control. I think this mis-states the relevance wrt 1201(a) somewhat. These argument are relevant to arguing that _as a matter of fact_ the plaintiffs reading makes no sense. The hinge point is, I think, the definition of "access to a work". The plaintiffs implicitly assume that "access to a work" means each and every acquisition of the plaintext. The argument you present is part of an argument that this reading cannot be. It must be that "access to a work" is the initial commercial acquisition of a copyrighted work. You are correct that this argument would not provide a defense to circumvention if one takes the plaintiffs' definition of "access to a work" as correct. > A good and effective demonstration of this would be to record a DVD movie > where the digital content is not an actual movie, but the digital bits of > an email which is sent from X to Y. The only way to get to the contents of > the DVD movie (the email) would be to decrypt via DeCSS. The DMCA > prohibits this - thus it prohibits free speech. [the 'play' button will > show only garbage, because while the email would be in MPEG format, the > bits themselves would look like random noise on the screen.] > > to make it even more dramatic, maybe the EFF lawyers could make a court > filing this way - putting the filing into an encrypted DVD, in digital > format ;-) > > [AFAIK there are no tools right now to 'wrap' non-movie digital content > into DVDs - what a pity.] Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:29:12 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24888 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:29:12 -0400 Received: from hotmail.com (f123.law9.hotmail.com [64.4.9.123]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id NAA24884 for ; Fri, 28 Jul 2000 13:29:10 -0400 Received: (qmail 82064 invoked by uid 0); 28 Jul 2000 17:28:08 -0000 Message-ID: <20000728172808.82063.qmail@hotmail.com> Received: from 128.244.34.133 by www.hotmail.com with HTTP; Fri, 28 Jul 2000 10:28:08 PDT X-Originating-IP: [128.244.34.133] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Fri, 28 Jul 2000 13:28:08 EDT Mime-Version: 1.0 Content-Type: text/plain; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu >Robert S. Thau writes: > >Yes, and so they'd have to argue that "access control monopoly" rights >promote progress in a different way --- which they would, by arguing >that their kind of "access control" is necessary for movie studios to >be able to receive compensation for their work, and "progress of the >useful arts" is promoted by having those works made available. (Or >maybe not quite that, if the Judge they're in front of knows the >difference between fine arts and useful arts, but hey, you get the >point). That is a point, but a weak one I think. Movie studies have produced films long before DMCA, and I think it is fair to say that giving them the type of access control that your interpretation provides is just as effective in promoting the fine arts, without a simultaneous anchor to the progress of the useful arts. I think your prediction of their counter argument assumes that they've already succeeded in breaking down the violation of (2) patent-like protection to copyright holders. I don't think they can do this, so (3) is still violated. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:29:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA24926 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:29:54 -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 NAA24919 for ; Fri, 28 Jul 2000 13:29:52 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Jul 2000 10:29:37 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D5E@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 120 1(a) Date: Fri, 28 Jul 2000 10:29:35 -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 > -----Original Message----- > From: Jim Taylor [mailto:jtfrog@usa.net] > Sent: Friday, July 28, 2000 12:57 AM > To: dvd-discuss@eon.law.harvard.edu > Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in > 1201(a) > > > Comments on Robert Thau's article > (http://www.ai.mit.edu/people/rst/dmca/auth/auth.html), in my role as > devil's advocate: > > "There is never any case in which the two implementations do anything > different. How, then, can the plaintiffs claim that one of > these things is > providing an access check which is bypassed by the other?" > > The critical flaw in this approach is that the plaintiffs > don't claim an > access check. They claim that CSS is a protection mechanism, > and that the > difference is that licensed implementations protect the > decrypted video from > being copied, while DeCSS makes the decrypted streams easily > copyable to > other media or distribution systems (such as DivX). Read that again: "-licensed- implementations". This indicates that what you have is a -contractual- protection measure, not a technical one. >That's a > big difference. > No one can deny the fact that DeCSS *can* be used in the process of > circumvention. True enough. We merely claim that there are also non-circumvention applications for DeCSS. >Without DeCSS or a similar program, a typical > computer owner > would not be able to directly copy a disc or copy the files > on it. Not true. You can copy the encrypted material perfectly adequately without DeCSS. You can place the copy in a DVD player and it works just like the original. >The only > defense against this fact is that DeCSS has other purposes, > but the article > doesn't adequately make this point. I have to pass on this, having not read the article yet. > > "...contorted interpretation of the law which leads the > plaintiffs to claim > that CSS is providing access control despite the fact that in > the ordinary > course of its operation, it can never deny access" > > The issue of access control is not that it is denied or not, only that > access is limited to a licensed system Again, this means that you have a control mechanism based on licensing, not on technical measures. >that takes steps to protect the > plaintext content from being copied. This representation of > the plaintiff's > interpretation is inaccurate. > > "...perform some explicit test that the user is authorized to view a > particular work..." > > This is only one interpretation of DMCA, which says nothing > about the *user* > being authorized. DMCA refers only to gaining access to a work. An > alternative interpretation is that CSS authorizes the > access--or the *use*, > if you will--not the user. CSS? Or the CSS -license-? And how can "CSS" grant authority? Authority must be granted by the copyright holder or designated agents. A "chain of custody" for the granting of authority must be visible. Where is this chain? The DVD manufacturers can not grant authority to view works that they do not control the copyright on. Or are you implying that copyright owners can say "you can access my work only by using device X". Where does this end? You can have access to my book only if you read it through rose colored glasses? That, btw, -could- be considered a technological protection measure. Have you ever seen the crackerjack prizes where you have stuff printed on top of each other in red and blue ink so you can't tell what's there? Then if you drop some red cellophane over the picture, you filter out the red lines and only the blue lines are left, so you can now see what is there clearly. Well ... somebody is now licensing the manufacture of red cellophane. If you make your own filter by placing some red dye in a petri dish full of water, that would be a "circumvention device" because you aren't using the cellophane produced by the licensed manufacturers. I do not believe that copyright extends to dictating the manner by which the work can be accessed, at least not to the extent that that manner is controlled by exclusive license. You can publish the work with red lines all over it. But you can not then control the manufacture of red cellophane and prosecute the people who create their own red dye filters. (hey, this started out as an off-the-cuff analogy, but it does fit the circumstances here fairly accurately, doesn't it?) >From this viewpoint the argument > and supporting > examples of pay per view and certificates have no relevance. As the > plaintiffs admit, there is no license with the user. This is > because the > user is not involved in the authorization process -- only the > devices and > media are. But -- and this is an important but -- nobody has informed the user that only certain devices may legitimately be used to access the work. If you are going to claim this as part of your authorization chain, the user -must- be informed. > > The article then points out that this is indeed the point of > view of the > plaintiffs. It then attacks CSS as "false" encryption (a > mostly irrelevant > point, which it admits near the end of the section) and as > something that > does not check if the viewer is authorized to view a work. > Once again, the > *viewer* is not what is being authorized. An effective > argument must attack > this claim of the plaintiffs, not veer off into the wrong > authorization > topic. Copyright in the past has always been focussed towards the use to which the work is put (i.e. copying for personal use vs. copying for mass redistribution). That is to say that it is the -intent- behind the act that determines whether the use is acceptable or not. The idea that it is the mechanism of access that matters, and not the intent of the act of access, is completely new. If they want to make this model work then they had darned well better make sure that everybody involved is aware of this new authority model. Copyright has been aimed at ensuring that the creators of works are adequatly and justly compensated for uses of that work. When we talk about descrambling cable broadcasts, the intent is clearly to avoid paying the cable fee. But when we are talking about a DVD we paid the fee at the cash register at blockbuster. Beyond that point the use of the work -- as long as it falls within the "home viewing only" authorization on the box and/or the fair use authorizations that we have under the law -- the use of the work is our own business. They copyright owner has been compensated. > The next section (encryption not required for access control) > makes way too > much of nitpicky points of semantics. It doesn't matter how > CSS works. It > was clearly designed for the purpose of access control, No, no, no. It was clearly -not- designed for the purpose of access control as it makes no check on whether access is to be permitted. It operates in the same manner whether the disk is authorized or unauthorized (e.g. Hong Kong copy) and whether the player is authorized or unauthorized (e.g. mfgr signed the license or DeCSS). If there is no difference in operation, there is not -control-. >so > it's very hard to > argue that it doesn't qualify. Macrovision is just some > fiddling with video > pulses, yet it's explicitly named in DMCA. And Macrovision -does- do the job of preventing people from making effective copies of the work. CSS does not. (Macrovision also, unfortunately, sometimes prevents people from watching the work at all ... but that's another issue) > > "without such a grant of authority, the plaintiffs claim, > ``decryption'' is > illegal" -- Excellent point, if you can show that the > plaintiffs truly > claim this. There's some meat here, but it gets thrown away again by > claiming that "authority must be granted to the party performing the > decryption." No. As the article itself admits, this is not > the plaintiff's > position, and nothing in the article has attacked the plaintiff's real > position. Then we need more in the article attacking the plaintiff's position. The reference to "authority must be granted to the party performing the decryption" is describing part of our view of the authority model, not the plaintiffs. Again, I have not read the article and perhaps this must be made clearer. > > My two cents: Condense all the stuff about authorizing users > to one or two > short paragraphs. The examples of authorization schema are > beside the point. > They all involve authorizing the user. As the article points > out at the end > of the authorization section, the plaintiffs have adopted > another reading. The point, however, is that the reading that the plaintiffs have adopted is impractical and incompatible with existing law and precedent. It should most certainly -not- be condensed down to one or two paragraphs. But if it is not clear what we are up to there, perhaps some more direct restating of the case should be added. -- -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 Jul 28 13:40:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25071 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:40:17 -0400 Received: from dial237.roadrunner.com (sf-du237.cybermesa.com [209.12.75.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25061 for ; Fri, 28 Jul 2000 13:40:12 -0400 Received: (from paul@localhost) by dial237.roadrunner.com (8.8.7/8.8.7) id LAA01383 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:40:39 -0600 Date: Fri, 28 Jul 2000 11:40:39 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000728114038.G711@localhost> References: <20000727174939.17584.qmail@web513.mail.yahoo.com> <20000727153323.D14138@eldritchpress.org> <39817354.F53B90FB@trustix.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <39817354.F53B90FB@trustix.com>; from larsg@trustix.com on Fri, Jul 28, 2000 at 01:49:40PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 01:49:40PM +0200, Lars Gaarden wrote: > Eric Eldred wrote: > > > > On Thu, Jul 27, 2000 at 10:49:39AM -0700, Bryan Taylor wrote: > > > ... > > > So why can't LiViD make a player? After all, Pavlovich testified their > > > final product doesn't allow the unencrypted movie to be stored on the > > > harddrive. The movie studios don't need to go into business selling > > > players to "take over" that market. > > > > It might be interesting if Kaplan rules that DeCSS is illegal > > but LiViD is not. Strange, but possible. > > If Kaplan considers the DeCSS Windows binary to be a tool primarily > used for copyright infringement purposes, it might very well be > considered illegal. This is a sticky point in the law because both the court and the plaintiffs claim that 1201(a) provides special legal status to technological measures which _prevent_ copyright infringement. This subtle word-play is used to claim that what is prevented cannot be something attained. Thus the P's claim, because there is no allegation of infringement, none of the standard defenses to copyright infringement can save DeCSS from a violation of federal law. This argument is of course, sophistry. "Well, the First Amendment isn't relevant because you never actually spoke --- we prevented you from doing that with some tape over your mouth". Courts usually look pretty dimly on that sort of argument in the U.S., but the Southern District of New York seems to be uncertain, perhaps they are taking a bit of a holiday from Constitutional questions, perhaps not. The long and the short of it is that Judge Kaplan _may_ rule solely on the basis of "circumvention", without particular reference to "infringement". Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:48:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25183 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:48:47 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25180 for ; Fri, 28 Jul 2000 13:48:46 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QLYX>; Fri, 28 Jul 2000 13:53:17 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4EB1@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: Fri, 28 Jul 2000 13:53:16 -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 Hmmm, so now are the Linux licensed players going to work at all? I could always hack the kernel to get at any page in memory for any process. -----Original Message----- From: Jim Taylor [mailto:jtfrog@usa.net] Sent: Friday, July 28, 2000 3:59 AM To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk As I recall, the CSS license explicitly requires that decrypted content be kept in protected memory and not paged to disc. Licensed decoders must take steps to prevent memory buffers from being swapped out. (Not that they could be anyway, when you're refreshing them at 24 or 30 frames per second.) From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:50:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25347 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:50:21 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25344 for ; Fri, 28 Jul 2000 13:50:19 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 615E77E1B5; Fri, 28 Jul 2000 19:49:42 +0200 (CEST) Date: Fri, 28 Jul 2000 19:58:44 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: <20000728112828.F711@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 Fri, 28 Jul 2000, Paul Fenimore wrote: > > While this fact has no relevance wrt. DMCA 1201, it probably has a > > relevance wrt. the First Amendment arguments: because IMO the DMCA 1201 > > forbids 'format conversions' as well, if *anyone* uses *any* format to > > restrict access to a copyrighted work, then conversion from this content > > format is automatically forbidden by the DMCA. This IMHO is obviously > > unconsitutional because is restrains speech just for the purpose of access > > control. > > I think this mis-states the relevance wrt 1201(a) somewhat. These > argument are relevant to arguing that _as a matter of fact_ the > plaintiffs reading makes no sense. The hinge point is, I think, the > definition of "access to a work". The plaintiffs implicitly assume > that "access to a work" means each and every acquisition of the > plaintext. The argument you present is part of an argument that this > reading cannot be. It must be that "access to a work" is the initial > commercial acquisition of a copyrighted work. > > You are correct that this argument would not provide a defense to > circumvention if one takes the plaintiffs' definition of "access to a > work" as correct. thanks for the insight. I based my assumption on this part of 1201: (a) (3): + (3) As used in this subsection - o (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 o (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. i felt that this is one of the fundaments of the law, as it defines the widely used terms 'circumvent a technological measure' and 'effectively controls access to work' terms. i dont fully understand how (B) should be read. 'application of information', 'process' or 'treatment' are not defined and thus (am i right?) up to interpretation by the judge? my problem with (B) is that if this is read in the context of CSS, then CSS is not a technological measure that 'effectively controls access to a work', because specifically the LiViD player *used as an ordinary player* does not need information from or the permission of the work owner to 'gain access to the work'. The mere existence of the LiViD player defeats (B) IMHO. And here is a subtle technological difference IMHO. If the LiViD player was using a player key, then that key would be 'information from the work owner', and thus CSS, as implemented by LiViD, would be bound by (B). But the LiViD player uses the result of the cryptographic attack on CSS, and uses *no* information, process or treatment from the work owner to 'gain access to the work'. if 'the CSS algorithm' (perceived to still be a trade secret by DVD CCA) is considered such a 'information, process or treatment, with the authority of the copyright owner', that would be a logical paradox - how can the CSS algorithm (as a mathematical set of symbols) be controlled by the DVD CCA in it's DeCSS or LiViD incarnation? The CSS algorithm as implemented by DeCSS and LiViD is the copyright of Jon Johansen. am i on the wrong track? Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:53:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25885 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:53:46 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25867 for ; Fri, 28 Jul 2000 13:53:44 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 67B7C7E1B5; Fri, 28 Jul 2000 19:53:14 +0200 (CEST) Date: Fri, 28 Jul 2000 20:02:16 +0200 (CEST) From: Ingo Molnar To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk In-Reply-To: <611C0CE12596D311B466009027D5E7591E4EB1@c100.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 Fri, 28 Jul 2000, Leland Ray wrote: > Hmmm, so now are the Linux licensed players going to work at all? > > I could always hack the kernel to get at any page in memory for any > process. the same is possible in Windows as well (witness DVD ripper software). This is a word play by the DVD CAA which has no technological meaning, eg. the decrypted content *will* be automatically copied by the CPU from main RAM into the L2 cache, from L2 cache into L1 cache, so copying does take place. This CSS-licensing requirement just tries to look like as if this was about copying. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 13:54:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA25906 for dvd-discuss-outgoing; Fri, 28 Jul 2000 13:54:08 -0400 Received: from dial149.roadrunner.com (sf-du149.cybermesa.com [209.12.75.149]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id NAA25895 for ; Fri, 28 Jul 2000 13:54:03 -0400 Received: (from paul@localhost) by dial149.roadrunner.com (8.8.7/8.8.7) id LAA01538 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 11:54:33 -0600 Date: Fri, 28 Jul 2000 11:54:32 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? Message-ID: <20000728115432.H711@localhost> References: <200007281151.HAA28325@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: ; from mingo@elte.hu on Fri, Jul 28, 2000 at 02:59:40PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 02:59:40PM +0200, Ingo Molnar wrote: > > On Fri, 28 Jul 2000, Robert S. Thau wrote: > > > > prohibits this - thus it prohibits free speech. [the 'play' button will > > > show only garbage, because while the email would be in MPEG format, the > > > bits themselves would look like random noise on the screen.] > > > > Not necessarily; you could use some sort of steganography to conceal > > the "message" in ordinary-looking video. [...] > > it does not even have to be a 'secret' message - the ordinary-looking > video could be sender saying 'you got an DVD-email from me!', to make the > example more straightforward. (ie. the binary content and the video itself > would correlate.) > > > Of course, the hard part of this demo is writing the CSS key sectors > > on the DVD (these are masked off on all commercially available > > DVD-RWs, IIRC). [...] > > how are DVDs then written to DVD_RWs? Is it possible only in an > unencrypted format? Strictly speaking, what Robert is talking about is probably the result of contractual limitations, they do not represent a technological limitation per se. Licensed DVD players and programs seem to only descramble a work if the disk-key-material and title-key-material are in a particular sector of the DVD disk. This may be due to contractual limitation, but we don't know for certain. All writable disks available through retail channels have the key-sector pre-written or in an unwritable state. Again, this may be a contractual limitation, we don't know for certain. It is definitely not a technological limitation per se. > > [...] And, of course, we'd have to convince Kaplan to reopen the trial > > to hear more evidence... > > the point could be made based on the record as well, IIRC there was one > example mentioned, the CSS-hiding contest winner has put the CSS algorithm > into an ordinary GIF file, right? And such a message could only be read > via DeCSS. So while the CSS algorithm protects some works, it might also > *hide* information. The very same encryption function can be (and often > is, while not yet in the case of DVDs) used to hide messages, and thus if > the DMCA 1201 forbids decryption (ie. reading of messages), it also > *forbids* certain forms of speech. Yup. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:09:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26396 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:09:27 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26390 for ; Fri, 28 Jul 2000 14:09:13 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA16242 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:12:33 -0400 Date: Fri, 28 Jul 2000 14:12:28 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] The DeCSS & DVD piracy Foolishness & 1201(c)(2) Message-ID: <20000728141228.A16063@eldritchpress.org> References: <20000728015934.19930.qmail@web512.mail.yahoo.com> <20000727214447.B478@localhost> <20000728011221.G14138@eldritchpress.org> <20000728102120.B711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000728102120.B711@localhost>; from fenimore@roadrunner.com on Fri, Jul 28, 2000 at 10:21:21AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 10:21:21AM -0600, Paul Fenimore wrote: > ... > 1. Congress was presented with argument about "digital" works and > "electronic" works. Just as Mr. Gold can't really tell the difference > and can't keep ease of distribution distinct from the absence of > generational loss, it is possible that Congress couldn't keep the two > straight either. If they did keep the points straight, then that is > support for the position that 1201(a) is about commercial acquisition, > and not the regulation of every use. > > 2. One can deal with particular aspects of "electronic works" (by which > people invariably mean that the _copy_ of the work is "electronic" in > some sense). One can solve the "problem" of there being no copy of the > work that changes hands. Because a copy changing hands has been the > customary way to "enforce" the receipt of payment from the audience, > electronic transmission presents a new scenario for compensation of the > copyright owner. It does not present a qualitatively different situation > regarding copying, it is an incremental improvement in low-cost copying. Actually, as Samuelson points out and others on this list, Congress seems to have been swayed by the potential of a "black box" that could do descrambling of digital content that was streamed, and allow copying and redistribution on the Internet. By extension, DMCA is now being read to exclude any descrambling that is done in software, without license from DVD-CCA, and even if the digital content is on a physical disc that the customer buys. > 3. There isn't anything to be done about "digital" works (i.e. a digital > encoding). The idea of using discrete symbols to encode a work is as > old as alphabetic language, and probably older. Copyright was _invented_ > to deal with the first technology for mass-producing works encoded using > discrete symbols: the printing press. Copyright started life with > "digital" works. (Although its purpose was not to promote progress, it > was quid pro quo to get the printing industry on board for the English > Crown's Official Censorship. The Statute of Anne didn't happen until > 1710.) Yes, when we talk about a physical disc instead of streamed video, then it becomes pretty clear where the commercial transaction occurs. Then the argument boils down to whether or not DeCSS has legally significant use other than decryption, and how DVD-CCA can legally authorize technology in some way beyond first sale. But you are right that this Canute principle is the one that MPAA is trying to use here--they want to control the technology and make it the means of controlling use after first sale. But there is no way that technology, a piece of code, can have criminal motives. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:17:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26533 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:17:11 -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 OAA26530 for ; Fri, 28 Jul 2000 14:17:10 -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:2.21) with ESMTP id OAA01374 for ; Fri, 28 Jul 2000 14:16:41 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id OAA29780; Fri, 28 Jul 2000 14:16:41 -0400 (EDT) Date: Fri, 28 Jul 2000 14:16:41 -0400 (EDT) Message-Id: <200007281816.OAA29780@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: <20000728112828.F711@localhost> References: <20000728112828.F711@localhost> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Paul Fenimore writes: > I think this mis-states the relevance wrt 1201(a) somewhat. These argument > are relevant to arguing that _as a matter of fact_ the plaintiffs reading > makes no sense. The hinge point is, I think, the definition of "access > to a work". The plaintiffs implicitly assume that "access to a work" means > each and every acquisition of the plaintext. The argument you present is > part of an argument that this reading cannot be. It must be that "access > to a work" is the initial commercial acquisition of a copyrighted work. Hmmm... how would this definition of "access" apply to unpublished or proprietary works? Access control pretty clearly makes sense in that case (the file system access controls in most operating systems would be an example), but there is no commercial acquisition at all. I think the law should be read to apply to those cases --- off the top of my head, I can't recall anything in the text of 1201, or the legislative history, which implies that it is meant to apply to published works only, and some of the exemptions (e.g., 1201(j) for security testing) make most sense to me in the context of a purely private network. (In fact, I'm not sure it's obvious that you *can* put access control on a published work --- it may conflict with the first sale doctrine, which, if I understand it right, allows the owner to resell a copyrighted work without the copyright holder's consent). FWIW, it's because of questions like this that I've focused on "authority" rather than "access" as the fulcrum of a similar argument about what is basically the same flaw in the plaintiffs' reading of the law. But hey, IANAL. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:17:59 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26549 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:17:59 -0400 Received: from natsemi-bh.nsc.com (natsemi-bh.nsc.com [204.163.202.66]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26546 for ; Fri, 28 Jul 2000 14:17:58 -0400 Received: (from uucp@localhost) by natsemi-bh.nsc.com (8.8.8/8.6.11) id LAA13798 for ; Fri, 28 Jul 2000 11:17:24 -0700 (PDT) Received: from mailhost1.ia.nsc.com(147.5.200.40) by natsemi-bh.nsc.com via smap (4.1) id xma013000; Fri, 28 Jul 00 11:15:52 -0700 Received: from ball by ia.nsc.com (SMI-8.6/SMI-SVR4) id MAA00354; Fri, 28 Jul 2000 12:15:51 -0600 From: "John Zulauf" To: Subject: Re: [dvd-discuss] Let's not miss another deadline! Date: Fri, 28 Jul 2000 12:18:05 -0600 Message-ID: <000801bff8c0$2cccece0$87ce0593@ia.nsc.com> 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 4.71.2377.0 Importance: Normal 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 Bryan Taylor wrote on: Thu, 27 Jul 2000 22:03:44 -0700 (PDT) > I think everybody that's looked at Robert's work agrees it's got a lot > of meat, especially on the authority stuff. The link is: > > http://www.ai.mit.edu/people/rst/dmca/auth/auth.html I really love Robert's stuff. He has synthesized and condense the arguement posed in this group wonderfully. Let me give a contrarian view -- may this isn't the stuff to focus on -- or perhaps at least not solely. My big worry is that looking 1201, realizing it's flaws, and recoginizing that CSS isn't covered may be too big a leap for the Court. The Court seems to have simply accepted 1201 applicability according to the following logic: (a) DeCSS defeats access restrictions of CSS put in place by the P's (b) 1201 requires copyright owners permission w.r.t. TPM's. (c) clearly the copyright holders haven't given permission for DeCSS and are demonstrating through this lawsuit the absence of their permission. DeCSS defeats a TPM san permission and is "circumvention" Q.E.D. We all see the problems with this logic. The "permission" cited has to do with the authority to access the work not the authority to produce an access device. However, the court has missed this distinction in a highly consistent way -- I hope the amici regarding authority can correct this, but I wonder. With the set of assumptions the Court has, he may consider it all irrelevant -- thus simply ignore the amici. Point (c) assumes a "guilt-by-accusation" model, also problematic but not to the Court.The P's have never shown that DeCSS allows access without the permission of the copyright holders. However the Court has assumed that the presence of the suit implies the absence of permission -- and thus ruled irrelevant all issues of authority. The Court's logic seems to be, "they're suing you, that would seem to imply you don't have their permission to do what you are doing and they want you to stop what you're doing, get it!" This ignores the other motives for such a suit. Potiphar's wife accused Joseph when he wouldn't sleep with her (for revenge, and as a cover story for why a half naked guy was seen running out of her bedroom) -- I'd hoped our legal system would have shown more progress from that of Pharaoh's. LiViD wouldn't sleep with the DVD-CAA, so now their crying "attempted rape" to cover their monopolistic, anti-consumer behavior. ------------ So, would a focus on the "burden of proof" on the P's be better than attacking the law and the P's arguments. Essentially, let's allow the P's interpretation of the law -- have they met their burden. P's claim: Burden DeCSS circumvents Show how. Show (not just claim) that CSS is effective. Show what authority is. Show what process "with the authority" is. Show how that authority is valid and legal Show how DeCSS fails the authority test. DeCSS does not qualify for exemptions Show absence of other uses. Show intent of no other use. ... Something along these lines. It seems to me the bulk of the P's case didn't address the specific claims and their burden of proof. Hey maybe this is stupid but IANAL, and I thought let's look at the problem a completely different way. John Zulauf private netizen From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:21:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26673 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:21:48 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26669 for ; Fri, 28 Jul 2000 14:21:29 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA16289 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:24:51 -0400 Date: Fri, 28 Jul 2000 14:24:46 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728142446.B16063@eldritchpress.org> References: <20000728172231.6450.qmail@web512.mail.yahoo.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000728172231.6450.qmail@web512.mail.yahoo.com>; from bryan_w_taylor@yahoo.com on Fri, Jul 28, 2000 at 10:22:31AM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 10:22:31AM -0700, Bryan Taylor wrote: > ... > Kaplan's statement of record is that "DVD matters" is > not sufficient for recusal. The 5th Cir. ruling that I posted yesterday > casts serious doubt on this, but that's an arguement for the appeal. If > we present arguments that raise the issue of "DVD antitrust matters", > then he'll have to further modify his position. What about the sudden introduction to the case of the DVD-CCA? Kaplan had already excluded testimony about the origin of this trust. Introducing it at this point denies defense the right to get testimony about the connection between MPAA and DVD-CCA. The precedents you gave previously about antitrust matters ought to be directly relevant. Defense does not have to prove that a monopoly existed, nor that consumers were harmed, but only that a tying existed of one market (movies) with another, separate one, that is not protected by their copyright, DVD players in computers. We can give evidence that the tying in fact occurs, but if we had testimony from parties such as Jack Valenti (including the involvement of Kaplan's firm), then we could show that the tying was deliberate (discovery of meetings, email, content of licenses, and son on). And defense has a right to this, in spite of Kaplan's ruling that antitrust is not a defense, because the precedents directly contradict him. Furthermore, Congress cannot have resolved this antitrust matter by passing DMCA, because if they interpreted it that way (which is questionable) then it would be unconstitutional, and Kaplan is authorized to strike down DMCA as being unconstitutional, and therefore that is a proper defense. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:33:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA26969 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:33:36 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA26957 for ; Fri, 28 Jul 2000 14:33:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA16317 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:36:38 -0400 Date: Fri, 28 Jul 2000 14:36:33 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Antitrust and IP: Kodak case Message-ID: <20000728143633.C16063@eldritchpress.org> References: <20000727174939.17584.qmail@web513.mail.yahoo.com> <20000727153323.D14138@eldritchpress.org> <39817354.F53B90FB@trustix.com> <20000728114038.G711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000728114038.G711@localhost>; from fenimore@roadrunner.com on Fri, Jul 28, 2000 at 11:40:39AM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 11:40:39AM -0600, Paul Fenimore wrote: >... > This is a sticky point in the law because both the court and the > plaintiffs claim that 1201(a) provides special legal status to > technological measures which _prevent_ copyright infringement. This > subtle word-play is used to claim that what is prevented cannot be > something attained. Thus the P's claim, because there is no allegation > of infringement, none of the standard defenses to copyright infringement > can save DeCSS from a violation of federal law. > > This argument is of course, sophistry.... Not only that, but it would not satisfy plaintiff's complaints. Samuelson treats this issue quite well, I think. A decision this way would simply gloss over and sustain the underlying contradiction in 1201, that it attempts to bar circumvention measures in toto and at the same time facially says that if you can somehow make use of the work without circumvention then that is fine with us. The answer has to be that you have to choose one or the other. Either 1201 in fact bars all fair use and first sale rights, once you interpret (b) in the way MPAA wants to interpret it, or you recognize that all the other exclusions and clauses were meant to show that Congress never intended the MPAA interpretation, or if it did then the whole act is unconstitutional--and I think we have at least three arguments for the last point. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:37:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27294 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:37:16 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27289 for ; Fri, 28 Jul 2000 14:37:10 -0400 Received: from ppp.anonymizer.com (c01-154.015.popsite.net [64.24.72.154]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id LAA20725; Fri, 28 Jul 2000 11:38:49 -0700 (PDT) Message-Id: <4.3.2.7.2.20000728113402.04ae8590@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Fri, 28 Jul 2000 11:37:47 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728142446.B16063@eldritchpress.org> References: <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.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 02:24 PM 7/28/2000 -0400, Eric Eldred wrote: >On Fri, Jul 28, 2000 at 10:22:31AM -0700, Bryan Taylor wrote: > > ... > > Kaplan's statement of record is that "DVD matters" is > > not sufficient for recusal. The 5th Cir. ruling that I posted yesterday > > casts serious doubt on this, but that's an arguement for the appeal. If > > we present arguments that raise the issue of "DVD antitrust matters", > > then he'll have to further modify his position. > >What about the sudden introduction to the case of the DVD-CCA? >Kaplan had already excluded testimony about the origin of this >trust. Introducing it at this point denies defense the right >to get testimony about the connection between MPAA and DVD-CCA. I am hoping that John Young's sneaker-net is scurrying about as I type, trying to get ahold of the docs so that we can find out what the hell this is all about. I can think of a number of reasons why DVD-CCA wants to intervene (they've only asked to, they haven't yet been granted permission to do so) and how those reasons might backfire, but it's really all speculation until we know the details. -------------------------------------------------------------------- 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 Fri Jul 28 14:45:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27453 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:45:18 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27450 for ; Fri, 28 Jul 2000 14:45:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA16360 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:48:24 -0400 Date: Fri, 28 Jul 2000 14:48:18 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Message-ID: <20000728144818.D16063@eldritchpress.org> References: <20000728133410.24635.qmail@hotmail.com> <200007281538.LAA29077@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007281538.LAA29077@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 28, 2000 at 11:38:22AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 11:38:22AM -0400, Robert S. Thau wrote: > Harold Eaton writes: > > I think it is important to realize that exclusive rights are > > granted to patent holders only once they have fully disclosed TO > > THE PUBLIC their invention. This disclosure is what leads to > > progress - any body can immediately take the idea and improve upon > > it (depending on the improvement, they might not be able to > > practice without license from the original patent holder, but that > > is a different issue). Under the P's reading, their right to > > access control doesn't require disclosure so it doesn't promote > > progress. > > Yes, and so they'd have to argue that "access control monopoly" rights > promote progress in a different way --- which they would, by arguing > that their kind of "access control" is necessary for movie studios to > be able to receive compensation for their work, and "progress of the > useful arts" is promoted by having those works made available. (Or > maybe not quite that, if the Judge they're in front of knows the > difference between fine arts and useful arts, but hey, you get the > point). Yes, I think the studios would argue (and have argued) this way. But (and I am not a lawyer) I think there are reasons to believe that courts have never accepted this interpretation of "progress." Instead, the interpretation has to require publication, and the information has to be available to the public, and at the end of the copyright term it has to be available for public use. Otherwise copyright has no purpose to serve the public good--it would only be perpetually protecting trade secrets (and this is what MPAA/DVD-CCA intends by 1201). There may be a valid reason for Congress to protect perpetually trade secrets, but I don't think you will find justification in the Copyright clause, and 1201 definitely fits under copyright law, not trade secret law. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:46:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27470 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:46:27 -0400 Received: from dial221.roadrunner.com (sf-du221.cybermesa.com [209.12.75.221]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27466 for ; Fri, 28 Jul 2000 14:46:24 -0400 Received: (from paul@localhost) by dial221.roadrunner.com (8.8.7/8.8.7) id MAA01725 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 12:46:57 -0600 Date: Fri, 28 Jul 2000 12:46:56 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 Message-ID: <20000728124656.J711@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 28, 2000 at 09:30:16AM -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 09:30:16AM -0700, Michael.A.Rolenz@aero.org wrote: > > Agreed. The plaintiffs case is a lot of smoke, mirrors, and hysteria. > > Interesting point. "subtantial increased risk of infringement"? Risk of > infringement from DVD copying is considerably less than VCR copying or CD > copying. More hysteria. Disclaimer: I'm not an economist, I only play one in this forum. In other words this is what Mr. Shamos called a "lay experiment" in the trial. I.e. I don't actually know what I'm talking about. The risk of copying is mostly a matter of economics, not of technology per se. If the law can keep what would otherwise be inexpensive technology for copying off the market, then the market will sustain high prices for copying. If the market attempts to sustain unreasonably high prices for copying in the face of lower-cost technology for copying, a new market will be created (in all likelihood). In my opinion, the lesson of the printing press is that lowering the cost of a copy generally results in a rise in volume that more than compensates for any potential loss in market-wide revenue. The key word there is "market-wide". The studios are not guaranteed to win if the market changes. This is why the studios and labels paid hard, cold cash to buy the Digital Millenium Copyright Act. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 14:51:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27638 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:51:25 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27619 for ; Fri, 28 Jul 2000 14:51:10 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id OAA16371 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:54:31 -0400 Date: Fri, 28 Jul 2000 14:54:26 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728145426.E16063@eldritchpress.org> References: <000801bff8c0$2cccece0$87ce0593@ia.nsc.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <000801bff8c0$2cccece0$87ce0593@ia.nsc.com>; from john.zulauf@ia.nsc.com on Fri, Jul 28, 2000 at 12:18:05PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 12:18:05PM -0600, John Zulauf wrote: > > So, would a focus on the "burden of proof" on the P's be better than > attacking the law and the P's arguments. Essentially, let's allow the P's > interpretation of the law -- have they met their burden. > > P's claim: Burden > DeCSS circumvents Show how. > Show (not just claim) that CSS is effective. > Show what authority is. > Show what process "with the authority" is. > Show how that authority is valid and legal > Show how DeCSS fails the authority test. > > DeCSS does not qualify for exemptions > Show absence of other uses. > Show intent of no other use. > ... > > Something along these lines. It seems to me the bulk of the P's case didn't > address the specific claims and their burden of proof. > > Hey maybe this is stupid but IANAL, and I thought let's look at the problem > a completely different way. Yes, I think everyone is having trouble interpreting plaintiffs' case, and it is difficult for the defense to concentrate forces when the attack is so scattered. Is there some way to pin down just what interpretation of the law plaintiffs are relying on here? I mean, here we are trying to find facts, and facts are ruled inadmissable, and here we are trying to interpret the law, and the law is ruled self-evident, and understand the charges, and the charges are never specified, or are self-contradictory. It might be better just to conduct a proper trial rather than this one for declaratory judgment. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 15:10:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA28577 for dvd-discuss-outgoing; Fri, 28 Jul 2000 15:10:52 -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 PAA28573 for ; Fri, 28 Jul 2000 15:10:51 -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:2.21) with ESMTP id PAA07654 for ; Fri, 28 Jul 2000 15:10:22 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id PAA00157; Fri, 28 Jul 2000 15:10:21 -0400 (EDT) Date: Fri, 28 Jul 2000 15:10:21 -0400 (EDT) Message-Id: <200007281910.PAA00157@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728145426.E16063@eldritchpress.org> References: <000801bff8c0$2cccece0$87ce0593@ia.nsc.com> <20000728145426.E16063@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > Yes, I think everyone is having trouble interpreting plaintiffs' case, > and it is difficult for the defense to concentrate forces when the > attack is so scattered. Is there some way to pin down just what > interpretation of the law plaintiffs are relying on here? I mean, > here we are trying to find facts, and facts are ruled inadmissable, > and here we are trying to interpret the law, and the law is ruled > self-evident, and understand the charges, and the charges are never > specified, or are self-contradictory. The problem, I think, is that we don't have access to the plaintiffs' law briefs, without which it isn't entirely clear what case they are making. However, we do have an *extensive* colloquy between a Time-Warner lawyer, Dean Marks, and David Carson of the LOC, in which Marks lays out a legal theory which seems to be consistent with everything they've presented thus far. The whole thing is available from cryptome (which seems to be down at the moment; if it stays down I'll put up a copy); however, the bits which I regard as choice are the basis of my account of the plaintiffs' theory in my infamous authority paper, and can be found quoted therein. The extremely condensed version is: 1) The law says that to "decrypt ... a work ... without the authority of the copyright owner" is circumvention 2) DeCSS decrypts works on DVD 3) We haven't authorized it, and we haven't authorized anyone to use it 4) It's circumvention, QED. Or, quoting Leon Gold at the pretrial hearing: Circumvent means to descramble, and that's what DeCSS does. A technological measure effectively controls the access here to do the protected work and CSS is such a measure and it's designed to control access to our copyrighted works. Because CSS is an encryption technology, you've got to have a software key to open it, so CSS qualifies as an access control measure. And all of the statutory requirements are met, and defendants are clearly violating them. That seems ridiculous to us, but if you ignore the context and the technical and legal issues that we've been chewing over for months, it is a superficially reasonable reading of the words in the law --- enough so that they've gotten Kaplan to just take it at face value without looking deeply. I think that is probably why he is taking circumvention as a simple fact, rather than as a conclusion that somebody has to argue for. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 15:31:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id OAA27470 for dvd-discuss-outgoing; Fri, 28 Jul 2000 14:46:27 -0400 Received: from dial221.roadrunner.com (sf-du221.cybermesa.com [209.12.75.221]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id OAA27466 for ; Fri, 28 Jul 2000 14:46:24 -0400 Received: (from paul@localhost) by dial221.roadrunner.com (8.8.7/8.8.7) id MAA01725 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 12:46:57 -0600 Date: Fri, 28 Jul 2000 12:46:56 -0600 From: Paul Fenimore To: dvd-discuss@EON.LAW.HARVARD.EDU Subject: Re: [dvd-discuss] Transcript, day 1, p. 3-5 Message-ID: <20000728124656.J711@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 28, 2000 at 09:30:16AM -0700 Sender: owner-dvd-discuss@EON.LAW.HARVARD.EDU Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 09:30:16AM -0700, Michael.A.Rolenz@aero.org wrote: > > Agreed. The plaintiffs case is a lot of smoke, mirrors, and hysteria. > > Interesting point. "subtantial increased risk of infringement"? Risk of > infringement from DVD copying is considerably less than VCR copying or CD > copying. More hysteria. Disclaimer: I'm not an economist, I only play one in this forum. In other words this is what Mr. Shamos called a "lay experiment" in the trial. I.e. I don't actually know what I'm talking about. The risk of copying is mostly a matter of economics, not of technology per se. If the law can keep what would otherwise be inexpensive technology for copying off the market, then the market will sustain high prices for copying. If the market attempts to sustain unreasonably high prices for copying in the face of lower-cost technology for copying, a new market will be created (in all likelihood). In my opinion, the lesson of the printing press is that lowering the cost of a copy generally results in a rise in volume that more than compensates for any potential loss in market-wide revenue. The key word there is "market-wide". The studios are not guaranteed to win if the market changes. This is why the studios and labels paid hard, cold cash to buy the Digital Millenium Copyright Act. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 15:58:02 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id PAA30519 for dvd-discuss-outgoing; Fri, 28 Jul 2000 15:58:02 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id PAA30516 for ; Fri, 28 Jul 2000 15:58:01 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id PAA03511 for ; Fri, 28 Jul 2000 15:57:32 -0400 Date: Fri, 28 Jul 2000 15:57:32 -0400 (EDT) From: Ole Craig To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) 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 07/28/00 at 14:13, 'twas brillig and Ingo Molnar scrobe: [...] > There is no technical and mathematical difference between the information > contained in an encrypted an a decrypted work. Both are magnetic states of > atoms on the hard or DVD disk, and none can be directly perceived either > by the copyright owner, or by the user. You cannot put those bits on your > monitor either. Both _formats of the work_ need *multiple* steps of > format-conversion and interim copying to be actually perceived by a human. > > Both the encrypted and the decrypted files are 'files', and as such can be > copied freely, as enabled by the OS. The only thing that is affected by > DeCSS is that it *widens* the ways possible to *view* the copyrighted > work. But viewing is completely orthogonal to copying. DeCSS does not > 'initially enable' to view the copyrighted work (the 'play' buttom on the > DVD player works, no matter wether the DVD itself is infringing on the > copyright of the owner of the work or not), it merely enables the viewing > of the work in ways which contradict with the views of the MPAA. DeCSS > does not 'enably copying' either, because copying of the VOB files is > already made possible by the OS. > > the fact that blank writable DVDs currently cost more than written DVDs is > irrelevant - a person or group of persons with sufficient criminal energy > could, in an economically efficient way, produce infringing DVD disks with > encrypted VOB files at the fraction of cost of current (written) DVDs. > > as a side-comment: the same reason is probably why none of the compression > patents forbid decompression. While the analogy is not fully valid, > forbidding 'unauthorized' decompression (ie. unauthorized conversion > between formats) deprives me of free speech. What if someone sends me an > email which is LZW compressed, if i couldnt decompress it without the > permission of Unisys then speech would be limited materially. I see the > very same problem with DMCA 1201. > > this is IMO a very robust point, on the 'Computer Science side' of things. > IANAL. IANAL either, but unfortunately I think we've missed our chance (short of a reversal on the recusal issue) to make this point, robust or not. In order to make it, we'd need to get *facts* into evidence -- the fact that "[t]here is no technical and mathematical difference between the information contained in an encrypted and a decrypted work", the fact that "[b]oth formats of the work need multiple steps of format-conversion," and that "copying the VOB files is already made possible by the OS." Evidentiary proceedings have concluded; what we've got is what's in the record. (Should the recusal get reversed, let's remember these points and talk to messrs Ramadge and Appel about them!) Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 16:29:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA31202 for dvd-discuss-outgoing; Fri, 28 Jul 2000 16:29:54 -0400 Received: from dial219.roadrunner.com (sf-du219.cybermesa.com [209.12.75.219]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA31199 for ; Fri, 28 Jul 2000 16:29:47 -0400 Received: (from paul@localhost) by dial219.roadrunner.com (8.8.7/8.8.7) id OAA02075 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:30:22 -0600 Date: Fri, 28 Jul 2000 14:30:21 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? Message-ID: <20000728143020.L711@localhost> References: <20000728112828.F711@localhost> <200007281816.OAA29780@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: <200007281816.OAA29780@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 28, 2000 at 02:16:41PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 02:16:41PM -0400, Robert S. Thau wrote: > Paul Fenimore writes: > > I think this mis-states the relevance wrt 1201(a) somewhat. These argument > > are relevant to arguing that _as a matter of fact_ the plaintiffs reading > > makes no sense. The hinge point is, I think, the definition of "access > > to a work". The plaintiffs implicitly assume that "access to a work" means > > each and every acquisition of the plaintext. The argument you present is > > part of an argument that this reading cannot be. It must be that "access > > to a work" is the initial commercial acquisition of a copyrighted work. > > Hmmm... how would this definition of "access" apply to unpublished or > proprietary works? Access control pretty clearly makes sense in that > case (the file system access controls in most operating systems would > be an example), It is very interesting that you mention the case of permission bits in a file system in connection with access controls. This is one of the cases I considered in trying to do my bit in understand access controls. My conclusion at the time was that, at least from the perspective of cryptography, permission bits are obscurity, not security. Permission bits do not prevent other people from reading a file. Permission bit invoke bits of code in the operating system, and those bits of code prevent people from reading the files. Change the instance of the operating system in question, and one might read the files. > but there is no commercial acquisition at all. It is possible that the precise wording of what I'm driving at will have to change, but I don't this threatens the commerce test too much. > I > think the law should be read to apply to those cases --- off the top > of my head, I can't recall anything in the text of 1201, or the > legislative history, which implies that it is meant to apply to > published works only, and some of the exemptions (e.g., 1201(j) for > security testing) make most sense to me in the context of a purely > private network. I take the view that the copyright owner has declined to even offer the work, much less offer it in exchange for payment. What is not offered cannot be seen as free for the taking. I think the "commercial acquisition" test gives a sensible result in this case: "How much money do you want for a copy of that work?" "The work is not for sale." "Oh, you don't want any money?" "No, I said it isn't for sale." "Mine now, for free too!" IANAL, there are privacy issues here too, but this seems to be a commercially significant acquisition, at least in some sense of the word "commercial". > (In fact, I'm not sure it's obvious that you *can* put access control > on a published work --- it may conflict with the first sale doctrine, > which, if I understand it right, allows the owner to resell a > copyrighted work without the copyright holder's consent). Well, so long as the access control mechanism is going to allow viewing of the work without revocation, I'm not sure what good it does from a technological stand-point. Either the "play" button works or it doesn't. If the button works, I say "published". If it doesn't work, I say "unpublished". (I'm assuming that I don't need to fix this particular player device/program.) I guess I'm saying that I think technologically effective access control applied to the plaintext of a work after publication is oxymoronic. > FWIW, it's because of questions like this that I've focused on > "authority" rather than "access" as the fulcrum of a similar argument > about what is basically the same flaw in the plaintiffs' reading of > the law. But hey, IANAL. Ditto. IANAL. I don't want to leave the impression that I think "authority" is unimportant. I think it is very important in two way: 1. It shows how ridiculous CSS is. 2. Access control using the commercial definition still requires sensible _technological_ mechanisms that _require_ the authority of the copyright owner. Otherwise we get back to Richard Hartman's crackerjack example of the secret decoder ring. I also feel like I should mention Ian Hay, who has not posted to dvd-discuss for an age, but played a critical role early on in figuring out the authority arguments. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 16:57:36 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA32028 for dvd-discuss-outgoing; Fri, 28 Jul 2000 16:57:36 -0400 Received: from dial116.roadrunner.com (sf-du116.cybermesa.com [209.12.75.116]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA32025 for ; Fri, 28 Jul 2000 16:57:32 -0400 Received: (from paul@localhost) by dial116.roadrunner.com (8.8.7/8.8.7) id OAA02219 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 14:58:04 -0600 Date: Fri, 28 Jul 2000 14:58:03 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728145802.M711@localhost> References: <000801bff8c0$2cccece0$87ce0593@ia.nsc.com> <20000728145426.E16063@eldritchpress.org> <200007281910.PAA00157@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: <200007281910.PAA00157@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Fri, Jul 28, 2000 at 03:10:21PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 03:10:21PM -0400, Robert S. Thau wrote: > Eric Eldred writes: > > Yes, I think everyone is having trouble interpreting plaintiffs' case, > > and it is difficult for the defense to concentrate forces when the > > attack is so scattered. Is there some way to pin down just what > > interpretation of the law plaintiffs are relying on here? I mean, > > here we are trying to find facts, and facts are ruled inadmissable, > > and here we are trying to interpret the law, and the law is ruled > > self-evident, and understand the charges, and the charges are never > > specified, or are self-contradictory. > > The problem, I think, is that we don't have access to the plaintiffs' > law briefs, without which it isn't entirely clear what case they are > making. > > However, we do have an *extensive* colloquy between a Time-Warner > lawyer, Dean Marks, and David Carson of the LOC, in which Marks lays > out a legal theory which seems to be consistent with everything > they've presented thus far. [ ... ] > The extremely condensed version is: > > 1) The law says that to "decrypt ... a work ... without the > authority of the copyright owner" is circumvention > 2) DeCSS decrypts works on DVD > 3) We haven't authorized it, and we haven't authorized anyone > to use it > 4) It's circumvention, QED. The weak points of which are (I think) two-fold: A. "3" is wrong because it assumes that 1201-authority is the contractual authority/say-so the copyright owner, just like section 106. In fact 1201(a)(3)(B) carefully requires that the _technological measure_ _require_ the operation with authority. That's nothing like 106. B. "1" is wrong because the real words are "access to a work", which can be defined at least two ways; (i) One way gives Bryan Taylor's list (as expanded by me) of about 10 constitutional or statutory disasters; or (ii) A definition that tosses the P's suit on its ear, but avoids the list of horribles and retains a function for 1201(a) very similar to 47 U.S.C. 553, 605. > Or, quoting Leon Gold at the pretrial hearing: > > Circumvent means to descramble, and that's what DeCSS does. A > technological measure effectively controls the access here to do > the protected work and CSS is such a measure and it's designed to > control access to our copyrighted works. Because CSS is an > encryption technology, you've got to have a software key to open > it, so CSS qualifies as an access control measure. And all of the > statutory requirements are met, and defendants are clearly > violating them. > > That seems ridiculous to us, but if you ignore the context and the > technical and legal issues that we've been chewing over for months, it > is a superficially reasonable reading of the words in the law --- > enough so that they've gotten Kaplan to just take it at face value > without looking deeply. I think that is probably why he is taking > circumvention as a simple fact, rather than as a conclusion that > somebody has to argue for. At face value, Mr. Gold's first sentence is worse than ridiculous --- it is flatly false. Circumvention is access to a work without authority. That is not what Mr. Gold said. He mentions crypto keys later, and one might take that to be "authority", but what he's actually arguing at that point is *effectiveness*, which relies in part on finding "with authority". He's already blown off the whole authority issue, so he's trying to argue that CSS isn't a secret decoder ring while hiding the pretextual nature of CSS. Very slippery. To paraphrase Wendy Seltzer: "Circumvention is a conclusion of law, not a finding of fact". Right below what you've quoted from the Jan. 20th transcript, Kaplan turns circumvention into a finding of fact, rather than a conclusion of law. He does so in response to Robin Gross' reply, "It does descramble". Every time I read this portion of the transcript I'm left climbing the walls. The transcript doesn't reflect someone operating in a clever or quick mode, it's facile. And I don't mean Gross or Levy. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 17:20:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA01183 for dvd-discuss-outgoing; Fri, 28 Jul 2000 17:20:09 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA01174 for ; Fri, 28 Jul 2000 17:20:07 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 9A9E37E1B5; Fri, 28 Jul 2000 23:19:37 +0200 (CEST) Date: Fri, 28 Jul 2000 23:28:40 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! In-Reply-To: <20000728145802.M711@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 Fri, 28 Jul 2000, Paul Fenimore wrote: > To paraphrase Wendy Seltzer: "Circumvention is a conclusion of law, > not a finding of fact". > > Right below what you've quoted from the Jan. 20th transcript, Kaplan > turns circumvention into a finding of fact, rather than a conclusion > of law. He does so in response to Robin Gross' reply, "It does > descramble". Every time I read this portion of the transcript I'm left > climbing the walls. maybe i'm mistaken, but appears to me that 1201 has it's own definition for 'circumvention', 1201(a)(3)(A) says: o (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 this definition simply does not meet the everyday definition of 'circumvention'. So DeCSS, in the definition of 1201, *does* 'circumvent a technological measure'. In the 1201-sense, 'unzip.exe' 'circumvents a technological measure' as well, if you compress a copyrighted work. So this 'circumvention' is indeed very factoid, it's result of the above definition. DeCSS does decrypt the VOB files, so according to 1201(a)(3)(A) definition it 'circumvents a technological measure'. No matter how ridiculous this is. the real meat IMHO (IANAL) is in 1201(a)(3)(B): o (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. because DVD-CCS does not meet this definition, as demonstrated by the LiViD player and beaten to death already. now, per 1201, it is *NOT* unlawful to 'circumvent a technological measure'. It's not illegal to run unzip.exe on a file for example. What is illegal is defined in 1201(a)(1)(A): o (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. And because CCS is not 'technological measure that effectively controls access to a work protected under this title', the law does not apply to DeCSS. Q.E.D. IMHO. so to repeat: DeCSS *does* 'circumvent' in 1201-sense but CSS is *not* an effective measure in 1201-sense Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 17:30:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02566 for dvd-discuss-outgoing; Fri, 28 Jul 2000 17:30:04 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA02563 for ; Fri, 28 Jul 2000 17:29:48 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id RAA16595 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 17:33:10 -0400 Date: Fri, 28 Jul 2000 17:33:05 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] "Authority" by rst Message-ID: <20000728173305.A16574@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from olc@cs.umass.edu on Fri, Jul 28, 2000 at 03:57:32PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 03:57:32PM -0400, Ole Craig wrote: >... > IANAL either, but unfortunately I think we've missed our > chance (short of a reversal on the recusal issue) to make this point, > robust or not. In order to make it, we'd need to get *facts* into > evidence -- the fact that "[t]here is no technical and mathematical > difference between the information contained in an encrypted and a > decrypted work", the fact that "[b]oth formats of the work need > multiple steps of format-conversion," and that "copying the VOB files > is already made possible by the OS." No, I think there has been some evidence on these points and I think a re-explanation in Robert's document is warranted. But after a hasty perusal of Robert's web page I don't see that we have been quite clear enough. The skeins of the arguments are rather mixed up. Here is a proposed outline. There are two possible interpretations of 1201. The two interpretations are exclusive--if they are taken together the act is self-contradictory, therefore the court must choose one. But in either case the law must be struck down. (This is a rewording and extension of Samuelson.) In the first interpretation, the plaintiffs', the movie studios have--by virtue of 1201(a), "access controls," and their identification of "technological measure" in 1201(a)(3)(B)--absolute, perpetual control over licensing both content and means to view purchased content. Call this the "strong" interpretation of 1201 as a whole. In the second interpretation, the defense's, CSS is none of the following: access control, authorization control, copy control, nor technological measure to accomplish any of these controls. But this "weak" interpretation understands 1201 as a whole to require examination of facts in each case to determine if the fair use and other exemptions apply, and not simple reliance on a priori reading of the separate clause concerning technological measure, and without reliance on the issuance of a license for authority to use the purchased disc. Then we explain how CSS and DeCSS really work. Then we explain the legislative history to show that our interpretation is correct. Then we show there is a fatal flaw in the DMCA, because under either interpretation the law must be struck down. To show this, a simple parallel with Vault v Quaid might be enough. The court must determine if DMCA overrules Vault v Quaid or not. Under the strong interpretation it does--circumvention of the encryption is enough, without a showing of intent. However, then the DMCA would run aground on the other half of Vault v Quaid-- that the DMCA would deprive users of fair use. And this we can see was not intended by Congress (nor allowed by the Constitution). Therefore a contradiction is exposed, and the law must be null and void, since this was a main part of the law. Even if this is not granted, the strong interpretation would mean that DMCA conflicts with the First Amendment: both free speech and free press. And the strong interpretation necessarily assumes that Congress intended the MPAA to gain monopoly power over the unrelated market of DVD players, a power that Congress cannot grant under Article I, Section 8. Under the weak interpretation, defense is entitled to produce evidence that DeCSS falls under the fair use exemptions. Defense was not permitted to do this. But even if it were able to do so, the weak interpretation would make the control by technology meaningless--DMCA would have no purpose as a new law. Since it must have been passed with the intent to enforce the technology clause, and this clause is not only meaningless, but contradictory, the DMCA must be made null, void, unenforceable, and sent back to Congress for rewriting. It should not be the job of the court to sort this out. Instead, it can use the constitutional arguments of Vault v Quaid to do the same to DMCA. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 17:35:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02776 for dvd-discuss-outgoing; Fri, 28 Jul 2000 17:35:58 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA02773 for ; Fri, 28 Jul 2000 17:35:56 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id CF9D37E1B5; Fri, 28 Jul 2000 23:35:26 +0200 (CEST) Date: Fri, 28 Jul 2000 23:44:31 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] wavelet compression, better video compression. NOT. In-Reply-To: <20000728145802.M711@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 there is a new wavelet-based compression method, which claims to be some 6 times better than previous methods: http://broccoli.caltech.edu/eas/schroder.html this can be spinned by the MPAA into 'look, a stunning video compression breakthrough, we told you'. Their point is invalid, becase *real movies* will *not* get smaller via this technology. This form of wavelet compression enables the compression of images that are computer-generated. Ie. 'pure' 3D images, where there are clear 3D objects, can be compressed better. But real movies which show the real world will not get smaller by this technology, becase the real world is so complex that the wavelet technology cannot find the 'underlying 3D model'. (and the underlying 3D model with all its dynamics is so complex that it would take up more image space to include the model than the 2D images themselves.) the wavelet technology was mentioned on the record, unfortunately i think it was not established that the compression of real movies is not affected very much. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 18:13:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA05928 for dvd-discuss-outgoing; Fri, 28 Jul 2000 18:13:28 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA05924 for ; Fri, 28 Jul 2000 18:13:27 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id SAA07033 for ; Fri, 28 Jul 2000 18:12:59 -0400 Date: Fri, 28 Jul 2000 18:12:59 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: [dvd-discuss] comments on comments on "Authority of the copyright owner 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 (N.B. This is essentially a condensation and restructuring of some of Paul Fenimore's excellent commentary and Robert S. Thau's treatment of "Authority of the Copyright Owner".) Plaintiffs are suing under 1201(a). "Access" with "authority of the copyright owner" in 1201(a)(3)(B) should be read narrowly to mean "commercial access" -- in other words, the transaction by which the copyright owner is compensated for publication of the work. With DVDs and other works sold on fixed media, this is the sale (c.f. "First Sale") of the medium containing the work. Section 1201(a) (particularly if one reads the Congressional record) is aimed at criminalizing access to works where the work in question is non-corporeal, and the ability to get at the work requires a key (or "process, or a treatment..") provided by the copyright owner in exchange for remuneration. Examples would include Divex (Kaplan's spelling) or pay-per-view cable. It is also instructive to note that, in the instant case of Digital Video Discs, authority of the copyright owner [per 17 USC 109(c)] is not required for lawful viewing of the content; hence, the acts necessary to enable such lawful viewing (such as gaining "access" to the work) do not require the authority of the copyright owner. The point here is that access to the work is provided by an action separate from the medium provided by the work, and that it is this action for which the copyright owner is given consideration. Failure to read 1201(a)(3)(B)'s "Access...with authority of the copyright owner" in this narrow manner leads to several undesireable results (see list below) including loss of distinction between 1201(a) and 1201(b). Why would Congress have written two separate sections if they mean the same thing? Plaintiffs attack DeCSS because it threatens to allow "uncontrollable copying." (Gold, 7/17 trial transcript, 5:10.) But copying is not access. (Copying is something that requires access, but that's a different statement, and also requires a particular reading of "access.") Copying (per 106) is an exclusive right of the copyright holder -- which is not a 1201(a)-protected item! Measures which limit exercise of exclusive rights are protected by 1201(b). Moreover, the CSS system does not protect against copying as a matter of technological prowess, but only as a consequence of contractual arrangement. 1201(b)(2)(B) holds that "the measure, in the ordinary course of its operation" must prevent, restrict, or "otherwise [limit] the exercise of a right of a copyright owner" -- here, it is not the measure that restricts, but the contract under which it is divulged. Not only does this not meet the language of the statute, it is in direct contrast to the language of 1201(c)(3). "List of 'orribles:" Plaintiffs' interpretation leads to: . no distinction between 1201(a) and 1201(b) . supersedure of 1201 over antitrust . nullification of 1201(c) enacted concurrently with 1201(a) . patent-like control given to authors . conflict with the congressional doctrine of "limited times" . ex post facto delegation of statutory power to private parties . "publication" without possibility of fair use . non-copyright uses per 17 USC 109 are no longer guaranteed Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 18:16:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA07103 for dvd-discuss-outgoing; Fri, 28 Jul 2000 18:16:41 -0400 Received: from hex.cs.umass.edu (root@hex.cs.umass.edu [128.119.243.169]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA07100 for ; Fri, 28 Jul 2000 18:16:40 -0400 Received: from hex.cs.umass.edu (IDENT:olc@hex.cs.umass.edu [128.119.243.169]) by hex.cs.umass.edu (8.9.3/8.8.8) with ESMTP id SAA07124 for ; Fri, 28 Jul 2000 18:16:12 -0400 Date: Fri, 28 Jul 2000 18:16:12 -0400 (EDT) From: Ole Craig To: DVD discussion Subject: [dvd-discuss] oops, read this one (comments on comments on "Authority of the copyright owner) 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 Read this version instead of the one I just sent -- I miss-pasted a paragraph, and the result is confusing, to say the least. Sorry 'bout that.. ------------ (N.B. This is essentially a condensation and restructuring of some of Paul Fenimore's excellent commentary and Robert S. Thau's treatment of "Authority of the Copyright Owner".) Plaintiffs are suing under 1201(a). "Access" with "authority of the copyright owner" in 1201(a)(3)(B) should be read narrowly to mean "commercial access" -- in other words, the transaction by which the copyright owner is compensated for publication of the work. With DVDs and other works sold on fixed media, this is the sale (c.f. "First Sale") of the medium containing the work. Section 1201(a) (particularly if one reads the Congressional record) is aimed at criminalizing access to works where the work in question is non-corporeal, and the ability to get at the work requires a key (or "process, or a treatment..") provided by the copyright owner in exchange for remuneration. Examples would include Divex (Kaplan's spelling) or pay-per-view cable. The point here is that access to the work is provided by an action separate from the medium provided by the work, and that it is this action for which the copyright owner is given consideration. Failure to read 1201(a)(3)(B)'s "Access...with authority of the copyright owner" in this narrow manner leads to several undesireable results (see list below) including loss of distinction between 1201(a) and 1201(b). Why would Congress have written two separate sections if they mean the same thing? It is also instructive to note that, in the instant case of Digital Video Discs, authority of the copyright owner [per 17 USC 109(c)] is not required for lawful viewing of the content; hence, the acts necessary to enable such lawful viewing (such as gaining "access" to the work) do not require the authority of the copyright owner. Plaintiffs attack DeCSS because it threatens to allow "uncontrollable copying." (Gold, 7/17 trial transcript, 5:10.) But copying is not access. (Copying is something that requires access, but that's a different statement, and also requires a particular reading of "access.") Copying (per 106) is an exclusive right of the copyright holder -- which is not a 1201(a)-protected item! Measures which limit exercise of exclusive rights are protected by 1201(b). Moreover, the CSS system does not protect against copying as a matter of technological prowess, but only as a consequence of contractual arrangement. 1201(b)(2)(B) holds that "the measure, in the ordinary course of its operation" must prevent, restrict, or "otherwise [limit] the exercise of a right of a copyright owner" -- here, it is not the measure that restricts, but the contract under which it is divulged. Not only does this not meet the language of the statute, it is in direct contrast to the language of 1201(c)(3). "List of 'orribles:" Plaintiffs' interpretation leads to: . no distinction between 1201(a) and 1201(b) . supersedure of 1201 over antitrust . nullification of 1201(c) enacted concurrently with 1201(a) . patent-like control given to authors . conflict with the congressional doctrine of "limited times" . ex post facto delegation of statutory power to private parties . "publication" without possibility of fair use . non-copyright uses per 17 USC 109 are no longer guaranteed Ole -- Ole Craig * olc@cs.umass.edu * UNIX; postmaster, news, web; SGI martyr * CS Computing Facility, UMass * for public key perl -e 'print$i=pack(c5,(41*2),sqrt(7056),(unpack(c,H)-2),oct(115),10);' From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 18:30:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA02776 for dvd-discuss-outgoing; Fri, 28 Jul 2000 17:35:58 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA02773 for ; Fri, 28 Jul 2000 17:35:56 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id CF9D37E1B5; Fri, 28 Jul 2000 23:35:26 +0200 (CEST) Date: Fri, 28 Jul 2000 23:44:31 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] wavelet compression, better video compression. NOT. In-Reply-To: <20000728145802.M711@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 there is a new wavelet-based compression method, which claims to be some 6 times better than previous methods: http://broccoli.caltech.edu/eas/schroder.html this can be spinned by the MPAA into 'look, a stunning video compression breakthrough, we told you'. Their point is invalid, becase *real movies* will *not* get smaller via this technology. This form of wavelet compression enables the compression of images that are computer-generated. Ie. 'pure' 3D images, where there are clear 3D objects, can be compressed better. But real movies which show the real world will not get smaller by this technology, becase the real world is so complex that the wavelet technology cannot find the 'underlying 3D model'. (and the underlying 3D model with all its dynamics is so complex that it would take up more image space to include the model than the 2D images themselves.) the wavelet technology was mentioned on the record, unfortunately i think it was not established that the compression of real movies is not affected very much. Ingo From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 18:46:39 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA12223 for dvd-discuss-outgoing; Fri, 28 Jul 2000 18:46:39 -0400 Received: from orange.fenimore.org (sf-du175.cybermesa.com [209.12.75.175]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA12220 for ; Fri, 28 Jul 2000 18:46:16 -0400 Received: (from paul@localhost) by orange.fenimore.org (8.8.7/8.8.7) id QAA02568 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 16:46:48 -0600 Date: Fri, 28 Jul 2000 16:46:47 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728164647.N711@localhost> References: <20000728145802.M711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from mingo@elte.hu on Fri, Jul 28, 2000 at 11:28:40PM +0200 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 11:28:40PM +0200, Ingo Molnar wrote: > > On Fri, 28 Jul 2000, Paul Fenimore wrote: > > > To paraphrase Wendy Seltzer: "Circumvention is a conclusion of law, > > not a finding of fact". > > > > Right below what you've quoted from the Jan. 20th transcript, Kaplan > > turns circumvention into a finding of fact, rather than a conclusion > > of law. He does so in response to Robin Gross' reply, "It does > > descramble". Every time I read this portion of the transcript I'm left > > climbing the walls. > > maybe i'm mistaken, but appears to me that 1201 has it's own definition > for 'circumvention', 1201(a)(3)(A) says: [ ... ] > so to repeat: > > DeCSS *does* 'circumvent' in 1201-sense Circumvention is only possible if (note that we're fighting up hill on this set of tests, the district court says that the copyright owner's say-so establishes authority): 1. There is descrambling (or the application of a process, etc), 2. there is no authority, 3. the technological measure protects access to work, and 4. the technology requires the authority of the copyright owner to operate correctly (i.e. this is 1201-authority, not 106-authority) are all satisfied. Otherwise there is no act of circumvention. I'm claiming that DeCSS fails "2", "3" and "4" above. A. The player-EULA disclaims the conveyance of any interest in copyrighted works. No authority is associated with the player-key or the device implementing CSS. No "absence of authority" can attach to DeCSS if no "presence of authority" attaches to the Xing player software. B. Access to a work means commercial acquisition of a work, which CSS does nothing to protect. C. CSS is pretextual cryptography which cannot, even in principle, distinguish authority of the copyright owner from no authority. Ex.: The copyright owner withdraws their say-so. The key is still in the licensed players. CSS does not "require" the authority of the copyright owner to operate. ==> We have descrambling by DeCSS without circumvention. In fact any act of undoing CSS is not-circumvention. > but CSS is *not* an effective measure in 1201-sense I agree. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:11:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA14764 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:11:10 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA14760 for ; Fri, 28 Jul 2000 19:11:08 -0400 Received: by aero.org id <17094-1>; Fri, 28 Jul 2000 16:10:38 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdKYAa26548; Fri Jul 28 16:10:22 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 16:09:38 -0700 Subject: Re: [dvd-discuss] Let's not miss another deadline! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 04:09:37 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 16:10:33 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Yes. it is the abuse of monopoly (or the trust) that is the problem. "Robert S. Thau" @eon.law.harvard.edu on 07/28/2000 10:22:31 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Let's not miss another deadline! Paul Fenimore writes: > There are legal monopolies outside the scope of the monopolies clause. Yes --- those that arise in the marketplace (the Zambonis may be a good example here). But that's not what's going on with CSS--- the plaintiffs claim that they have, in effect been *granted* a monopoly by Congress. And there are only certain kinds of monopolies that Congress can grant --- which is the point of that analysis. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:14:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA15227 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:14:54 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA15224 for ; Fri, 28 Jul 2000 19:14:52 -0400 Received: by aero.org id <17115-4>; Fri, 28 Jul 2000 16:14:15 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdCZAa26548; Fri Jul 28 16:14:09 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 16:12:50 -0700 Subject: Re: [dvd-discuss] Let's not miss another deadline! To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 04:12:48 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 16:14:11 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu It may wind up being grounds for overturning on appeal. Eric Eldred @eon.law.harvard.edu on 07/28/2000 11:31:27 AM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Let's not miss another deadline! On Fri, Jul 28, 2000 at 10:22:31AM -0700, Bryan Taylor wrote: > ... > Kaplan's statement of record is that "DVD matters" is > not sufficient for recusal. The 5th Cir. ruling that I posted yesterday > casts serious doubt on this, but that's an arguement for the appeal. If > we present arguments that raise the issue of "DVD antitrust matters", > then he'll have to further modify his position. What about the sudden introduction to the case of the DVD-CCA? Kaplan had already excluded testimony about the origin of this trust. Introducing it at this point denies defense the right to get testimony about the connection between MPAA and DVD-CCA. The precedents you gave previously about antitrust matters ought to be directly relevant. Defense does not have to prove that a monopoly existed, nor that consumers were harmed, but only that a tying existed of one market (movies) with another, separate one, that is not protected by their copyright, DVD players in computers. We can give evidence that the tying in fact occurs, but if we had testimony from parties such as Jack Valenti (including the involvement of Kaplan's firm), then we could show that the tying was deliberate (discovery of meetings, email, content of licenses, and son on). And defense has a right to this, in spite of Kaplan's ruling that antitrust is not a defense, because the precedents directly contradict him. Furthermore, Congress cannot have resolved this antitrust matter by passing DMCA, because if they interpreted it that way (which is questionable) then it would be unconstitutional, and Kaplan is authorized to strike down DMCA as being unconstitutional, and therefore that is a proper defense. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:34:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18973 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:34:56 -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 TAA18970 for ; Fri, 28 Jul 2000 19:34:55 -0400 Received: by mail2.onetouch.com with Internet Mail Service (5.5.2650.21) id ; Fri, 28 Jul 2000 16:34:43 -0700 Message-ID: <5A8391CA2D9ED311AFAA080009D982B10B1D67@mail2.onetouch.com> From: Richard Hartman To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] "Authority" by rst Date: Fri, 28 Jul 2000 16:34:37 -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 Eldred [mailto:eldred@eldritchpress.org] > Sent: Friday, July 28, 2000 2:33 PM > To: dvd-discuss@eon.law.harvard.edu > Subject: Re: [dvd-discuss] "Authority" by rst > > > On Fri, Jul 28, 2000 at 03:57:32PM -0400, Ole Craig wrote: > >... > > IANAL either, but unfortunately I think we've missed our > > chance (short of a reversal on the recusal issue) to make > this point, > > robust or not. In order to make it, we'd need to get *facts* into > > evidence -- the fact that "[t]here is no technical and mathematical > > difference between the information contained in an encrypted and a > > decrypted work", the fact that "[b]oth formats of the work need > > multiple steps of format-conversion," and that "copying the > VOB files > > is already made possible by the OS." > > No, I think there has been some evidence on these points and > I think a re-explanation in Robert's document is warranted. Since Kaplan was so taken with Touretsky's description about the relationship between source code and object code, we may be able to draw an analogy to make this clear to him. In effect: plaintext source code cryptotext object code encryption compilation -- -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 Jul 28 19:37:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19030 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:37:53 -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 TAA19027 for ; Fri, 28 Jul 2000 19:37:52 -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:2.21) with ESMTP id TAA02656 for ; Fri, 28 Jul 2000 19:37:24 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA01023; Fri, 28 Jul 2000 19:37:23 -0400 (EDT) Date: Fri, 28 Jul 2000 19:37:23 -0400 (EDT) Message-Id: <200007282337.TAA01023@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: <200007281142.HAA28309@soggy-fibers.ai.mit.edu> References: <200007280404.AAA27354@soggy-fibers.ai.mit.edu> <200007281142.HAA28309@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Jim Taylor writes: > > "without such a grant of authority, the plaintiffs claim, > > ``decryption'' is illegal" -- Excellent point, if you can show > > that the plaintiffs truly claim this. There's some meat here, > > but it gets thrown away again by claiming that "authority must > > be granted to the party performing the decryption." No. As the > > article itself admits, this is not the plaintiff's position, and > > nothing in the article has attacked the plaintiff's real > > position. FWIW, I've just put up a revised version of my "authority" screed which tries to accomodate some of Jim's suggestions; in particular, I rewrote this section in order to try to make the argument plainer. (I also quoted the Xing player license, to make it clear that users have *no* notice that possession of a licensed player grants authority to play DVDs; the Xing license is quite explicit in saying that it grants no such authority whatever). I've also tossed in a brief new section on how the plaintiffs' injunction will interfere with cryptographic research (by enjoining communication of research on CSS and similar systems, which would necessarily include precise descriptions of the systems and what they do). It also tries to argue that there is a similar inconsistency between the plaintiffs' position and the reverse engineering safe harbors in the DMCA --- the whole point of reverse engineering, in ordinary practice, is typically to get around someone's obnoxious license, or refusal to disclose information necessary to build a product. If that product will ultimately require the license anyway, I'm not sure I see the point. But I'm not so happy with that argument as I am with the encryption --- the RE safe harbor in 1201 is another large and strangely worded beast. As ever, the URL is http://www.ai.mit.edu/people/rst/dmca/auth/auth.html and comments are welcome. rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:45:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19151 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:45:56 -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 TAA19148 for ; Fri, 28 Jul 2000 19:45:55 -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:2.21) with ESMTP id TAA03207 for ; Fri, 28 Jul 2000 19:45:27 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA01035; Fri, 28 Jul 2000 19:45:25 -0400 (EDT) Date: Fri, 28 Jul 2000 19:45:25 -0400 (EDT) Message-Id: <200007282345.TAA01035@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] oops, read this one (comments on comments on "Authority of the copyright owner) In-Reply-To: References: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ole Craig writes: > Plaintiffs are suing under 1201(a). "Access" with "authority > of the copyright owner" in 1201(a)(3)(B) should be read narrowly to > mean "commercial access" -- in other words, the transaction by which > the copyright owner is compensated for publication of the work. With > DVDs and other works sold on fixed media, this is the sale (c.f. > "First Sale") of the medium containing the work. Hmmm... I'm still not sure how this definition applies to unpublished works --- it's certainly meaningful to control access to such works. A company's internal design documents, for instance, are often limited to a small set of authorized individuals, and it's common for their computers to control access so that only those individuals get to see the documents. Yet there is no commercial transaction at all when one of those authorized users views, or is granted access to, the document. (If you have some reason to believe that the scope of 1201(a) is supposed to be limited to published works, that would also be very much of interest). rst From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:46:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19163 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:46:33 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19159 for ; Fri, 28 Jul 2000 19:46:22 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA16697 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 19:49:46 -0400 Date: Fri, 28 Jul 2000 19:49:41 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] wavelet compression, better video compression. NOT. Message-ID: <20000728194941.B16574@eldritchpress.org> References: <20000728145802.M711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from mingo@elte.hu on Fri, Jul 28, 2000 at 11:44:31PM +0200 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 11:44:31PM +0200, Ingo Molnar wrote: > > the wavelet technology was mentioned on the record, unfortunately i think > it was not established that the compression of real movies is not affected > very much. Fractal compression was also introduced by the court. However, unlike the other compression techniques it is quite asymmetrical and would likely take too long to be useful in trading movies online. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 19:53:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA19676 for dvd-discuss-outgoing; Fri, 28 Jul 2000 19:53:14 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA19673 for ; Fri, 28 Jul 2000 19:53:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA16719 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 19:56:27 -0400 Date: Fri, 28 Jul 2000 19:56:22 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Let's not miss another deadline! Message-ID: <20000728195622.C16574@eldritchpress.org> References: <20000728145802.M711@localhost> <20000728164647.N711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000728164647.N711@localhost>; from fenimore@roadrunner.com on Fri, Jul 28, 2000 at 04:46:47PM -0600 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 04:46:47PM -0600, Paul Fenimore wrote: >... > Circumvention is only possible if (note that we're fighting up hill on > this set of tests, the district court says that the copyright owner's > say-so establishes authority): Well, we just need to get into the authority question more. > 1. There is descrambling (or the application of a process, etc), > > 2. there is no authority, > > 3. the technological measure protects access to work, and > > 4. the technology requires the authority of the copyright owner to > operate correctly (i.e. this is 1201-authority, not 106-authority) > > are all satisfied. Otherwise there is no act of circumvention. > > I'm claiming that DeCSS fails "2", "3" and "4" above. Yes, I think that is correct. However, you could also say that it might be possible to "circumvent" without descrambling, as for example by capturing the analog video stream (the licensed player is authorized to do the descrambling for you). This is according to MPAA also circumventing, because the technical measure applied includes the full measure of requirements for a CCS license. If this is true then it is hard to see how 1. can be included. > ==> We have descrambling by DeCSS without circumvention. In fact any > act of undoing CSS is not-circumvention. > > > but CSS is *not* an effective measure in 1201-sense Yes. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:05:21 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20046 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:05:21 -0400 Received: from shaft.bitmine.net (root@shaft.bitmine.net [216.231.58.163]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20043 for ; Fri, 28 Jul 2000 20:05:18 -0400 Received: from localhost (jbrelin@localhost) by shaft.bitmine.net (8.9.3/8.9.3/Debian 8.9.3-21) with ESMTP id RAA28627 for ; Fri, 28 Jul 2000 17:04:25 -0700 Date: Fri, 28 Jul 2000 17:04:24 -0700 (PDT) From: Jeme A Brelin X-Sender: jbrelin@shaft.bitmine.net To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Summers v. Tice and hearsay In-Reply-To: <20000728104944.A15493@eldritchpress.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 Fri, 28 Jul 2000, Eric Eldred wrote: > I don't think there is even that much evidence. The > proper analogy would be if the plaintiff dropped > dead "at or about the same time" as one defendant > bought a shotgun. There has been no evidence of > shotgun pellets in the corpse. Eric and related people who have brought up case law regarding this issue, coudl you write up this argument a bit more formally and present it to the group by Monday? I think this is the strongest argument on the application of Summers to this case. There is no evidence that any of these movies were ripped from DVD. Remember that no evidence should be brought into this brief... don't try to explain what other methods are available. Just note that the plaintiff failed to bring evidence that even the method was like that in dispute in this case. > I don't think there is that much evidence. One movie > has been testified to be traded, after hours of > trying, and possible entrapment. The other offers > could be bogus, we have no idea if there are real > movies out there. Plaintiffs should be compelled to > introduce that evidence. Their claim that they don't > need to, because of automatic invocation of the > anticircumvention clause without having to show > copying, is neither fair nor in line with the only > interpretation of the DMCA that makes sense in light > of copyright law and the legislative history. It > denies defendants the right to a fair trial and is > hearsay. I agree and this is strong. Comments? J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:16:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20209 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:16:14 -0400 Received: from dial193.roadrunner.com (sf-du193.cybermesa.com [209.12.75.193]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA20206 for ; Fri, 28 Jul 2000 20:16:08 -0400 Received: (from paul@localhost) by dial193.roadrunner.com (8.8.7/8.8.7) id SAA02738 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 18:16:46 -0600 Date: Fri, 28 Jul 2000 18:16:44 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] oops, read this one (comments on comments on "Authority of the copyright owner) Message-ID: <20000728181641.O711@localhost> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: ; from olc@cs.umass.edu on Fri, Jul 28, 2000 at 06:16:12PM -0400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 06:16:12PM -0400, Ole Craig wrote: [ ... ] > Plaintiffs are suing under 1201(a). "Access" with "authority > of the copyright owner" in 1201(a)(3)(B) should be read narrowly to > mean "commercial access" -- in other words, the transaction by which > the copyright owner is compensated for publication of the work. With > DVDs and other works sold on fixed media, this is the sale (c.f. > "First Sale") of the medium containing the work. That's the example I've been talking up, but "commercially significant" is probably the right phraseology --- in other words if they give you the work, they can't come back and demand money later. A gift is a gift, not an IOU. > Section 1201(a) > (particularly if one reads the Congressional record) is aimed at > criminalizing access to works where the work in question is > non-corporeal, The test I'd prefer is "does a copy change hands or not?" If a new copy pops out, then I call that a "transmission". This is probably legally important for what happens after commercially significant access to the work is completed. I think we're stuck with "incorporeal" in court, but it gives me the heebee jeebeeies --- information is always embodied in a copy. The work is the information (with apologies to Ben Reeve), the information is the particular state of the copy. Example: lines of ink on a page vs. dipping the paper in ink. "Dipped" stores substantially less information than the heterogeneous lines. There is a copy in the electromagnetic field above the page, stored in photons. Ideas? Well, let's not go there. > and the ability to get at the work requires a key (or > "process, or a treatment..") provided by the copyright owner in > exchange for remuneration. To satisfy the "requires" test in (a)(3) (I think Robert Thau is a supporter and originator of this view), the cryptography cannot be pretextual, the keys have to be different from one another and "random-looking". > Examples would include Divex (Kaplan's > spelling) or pay-per-view cable. I don't see Divx as commercially significant, but I can see how reasonable people might differ. If Divx is "rental" how come I don't get to return the copies? Some people might say this is rental of the work. If it turns out one can "rent" works after what looks all the world to me like the sale of copy, I will seriously regret this law. We're all share-croppers then. As for pay-per-view cable: yes, this is 1201(a). Once I've legally descrambled, whether I write the thing to a tape, or just write it to the phosphors or liquid-crystal on my screen is determined by ordinary standards of fair use. In case anyone was wondering, I think 1201(b) is evil. Now that I've made an invitation to a riot, I'll stop. > The point here is that access to the work is provided by an > action separate from the medium provided by the work, and that it is > this action for which the copyright owner is given consideration. > Failure to read 1201(a)(3)(B)'s "Access...with authority of the > copyright owner" in this narrow manner leads to several undesireable > results (see list below) including loss of distinction between 1201(a) > and 1201(b). Why would Congress have written two separate sections if > they mean the same thing? > > It is also instructive to note that, in the instant case of > Digital Video Discs, authority of the copyright owner [per 17 USC > 109(c)] is not required for lawful viewing of the content; hence, the > acts necessary to enable such lawful viewing (such as gaining "access" > to the work) do not require the authority of the copyright owner. You might want to bounce the "1201(c)(1) was enacted simultaneously with 1201(a)" bit off the court in connection with 109(c). > Plaintiffs attack DeCSS because it threatens to allow > "uncontrollable copying." (Gold, 7/17 trial transcript, 5:10.) But > copying is not access. (Copying is something that requires access, "Copying is something that requires access" is ok, even for commercial-access, *but* it is incorrect to assume that the technological measure which protects access to the work prevents copying! This is not in fact a paradox. *It is the reason the plaintiffs' reading of the law is totally broken*. One must get access to the work to copy. Ciphertext is always good enough to start producing copies. But because cryptography used to solve the privacy problem (i.e. "encryption") denies all non-copying use of the plaintext, the *commerce* is protected, even though copying can *never* be prevented after publication (short of destroying every copy, or all the plaintext and all the keys). Ultimately, people pay for a work because of the "non-copying" uses (I've arbitrarily and capriciously defined the copy that enters you eyes to not be a copy because the law calls that reading, performance, viewing, etc.) It is possible to protect the /commercial/ aspect of access without denying access to the ciphertext. Thus we get protection of the commerce without protection of the work against copying. I think it is easy to accidentally follow this line of reasoning down the road to the fallacy that cryptography can solve the copying problem. > but > that's a different statement, and also requires a particular reading > of "access.") Copying (per 106) is an exclusive right of the copyright > holder -- which is not a 1201(a)-protected item! Measures which limit > exercise of exclusive rights are protected by 1201(b). > > Moreover, the CSS system does not protect against copying as a > matter of technological prowess, but only as a consequence of > contractual arrangement. 1201(b)(2)(B) holds that "the measure, in the > ordinary course of its operation" must prevent, restrict, or > "otherwise [limit] the exercise of a right of a copyright owner" -- > here, it is not the measure that restricts, but the contract under > which it is divulged. Not only does this not meet the language of the > statute, it is in direct contrast to the language of 1201(c)(3). > > > "List of 'orribles:" > Plaintiffs' interpretation leads to: > . no distinction between 1201(a) and 1201(b) > . supersede of 1201 over antitrust > . nullification of 1201(c) enacted concurrently with 1201(a) > . patent-like control given to authors > . conflict with the congressional doctrine of "limited times" > . ex post facto delegation of statutory power to private parties > . "publication" without possibility of fair use > . non-copyright uses per 17 USC 109 are no longer guaranteed Actually 109 is fair use or first sale or perhaps both. Non-copyright is the uses that are omitted from section 106, so they need no exception under fair use. My pet example is the right to read. It's how I got interested in this case. Paul Fenimore From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:25:10 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20665 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:25:10 -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 UAA20662 for ; Fri, 28 Jul 2000 20:25:09 -0400 Message-ID: <20000729002410.24918.qmail@web512.mail.yahoo.com> Received: from [131.44.121.4] by web512.mail.yahoo.com; Fri, 28 Jul 2000 17:24:10 PDT Date: Fri, 28 Jul 2000 17:24:10 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Essay on Circumvention, Authorzation & Antitrust 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 written an essay on Circumvent, Authorization * Antitrust. I think the way I'm treating the subject is different from and complementarty to Robert's way in many respects (obviously there is some overlap). I spend a lot of time on the antitrust and misuse topics, for example. Perhaps the two could be blended together. It's still in progress, but I've completed substantial chunks of it. http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/essay1.txt Comments are welcome. It's very raw, by the way. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:28:50 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA20991 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:28:50 -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 UAA20988 for ; Fri, 28 Jul 2000 20:28:49 -0400 Message-ID: <20000729002751.26899.qmail@web515.mail.yahoo.com> Received: from [131.44.121.4] by web515.mail.yahoo.com; Fri, 28 Jul 2000 17:27:51 PDT Date: Fri, 28 Jul 2000 17:27:51 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Could the judge, in effect, "GPL" DeCSS? 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 Iteresting view. I've been wondering if the judge might say that DeCSS meets the RE exception, but only in the more readable form of source. Programmers who wanted to use it, for example can simply compile it. --- John Schulien wrote: > There's another completely wild possibility. The > judge could find that: > > 1. DeCSS, when distributed as source code, is > expressive, and protected by the First Amendment. > > 2. DeCSS, when distributed as a combination of > source and object code, is also expressive, because > the object code provides a functional demonstration > of the source code to someone without the specific > resources required to compile the source code. > > 3. DeCSS, when distributed as object code only, > tips the balance so far away from expression, > and towards functionality, that the program becomes > device-like, and is not protected by the First > Amendment. > > The judge could therefore order that DeCSS is > illegal to distribute unless the source code is > included as part of the distribution, or made > available by the person performing the distribution > on request. > > The interesting thing about such an interpretation > is that it is essentially a description of the GPL -- > the Gnu Public License, created by Richard > Stallman, and available at www.gnu.org. > > A simplified description of the GPL is that > when software is released under the GPL, the > copyright is retained by the author, and used as > the legal basis of an extremely permissive license > which closely mimics the public domain. The most > significant difference between a GPL licensed > program and a program in the public domain, is > the critical restriction that distribution of a GPLed > program, or derivitave, is only permitted so long > as the program is distributed along with its source > code. > > Such a finding would provide a strong legal > incentive for authors of "controversial" software > to release their works under the GPL. > > All this said, I think that finding DeCSS to be > protected speech in all forms would be a better > outcome, but this is one possible -- and I think > a very interesting -- middle ground -- that would > significantly change the legal landscape in an > unexpected way. > > - John > > __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:37:46 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21315 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:37:46 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA21312 for ; Fri, 28 Jul 2000 20:37:45 -0400 Received: by aero.org id <17100-5>; Fri, 28 Jul 2000 17:36:57 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdGKBa26548; Fri Jul 28 17:36:43 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 17:02:33 -0700 Subject: Re: [dvd-discuss] Shotgun Analogy To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 05:02:32 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 17:36:51 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu So what's your point? Consilgere@cs.com@eon.law.harvard.edu on 07/27/2000 11:00:45 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Shotgun Analogy anecdotes. exceptions, not rules. Yes, information was important in wartime, and during exploration. But Im talking about peacetime, civilian life. A serf on a manor in England knew how to plant his crop, and praise his god. That's all he needed to know. And usually, that pretty much was all he knew. If you told him the Earth revolved around the sun, he wouldn't care. It didnt affect him. Now, you tell someone the value of some company dropped 5%, he goes scrambling for his computer to change his portfolio. You couldn't force someone to pay for your stuff in the 1920s by simply knowing a name, address and a 16 digit number. You couldn't close a store by feeding paper with holes in it into a machine, and you couldn't give someone a book without relinquishing your copy, or copying it verbatim into another book. We are more reliant on information than we were before, that's why we need to change the way we treat it. Because it has a different role now. In the past, information was rarely of the importance you're describing. It got more important as time progressed, but its still fundamentally different than it was back then. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:38:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA21427 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:38:53 -0400 Received: from aero.org (aero.org [130.221.16.2]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA21408 for ; Fri, 28 Jul 2000 20:38:51 -0400 Received: by aero.org id <17102-3>; Fri, 28 Jul 2000 17:38:10 -0700 Received: from mhultra.aero.org(130.221.88.102) via SMTP by aero.org, id smtpdZKBa26548; Fri Jul 28 17:37:54 2000 Received: from lahub01-a3.aero.org by mhultra.aero.org with ESMTP for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 17:23:33 -0700 Subject: Re: [dvd-discuss] Summers v. Tice and hearsay To: dvd-discuss@eon.law.harvard.edu From: Michael.A.Rolenz@aero.org Message-Id: X-MIMETrack: Serialize by Router on lahub01/AerospaceNet/Aerospace/US(Release 5.0.3 |March 21, 2000) at 07/28/2000 05:23:32 PM MIME-Version: 1.0 Content-type: text/plain; charset=us-ascii Date: Fri, 28 Jul 2000 17:38:06 -0700 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu The problem I have with the analogy is that in that instance, jointly and separate liability was against KNOWN persons (the hunters) for KNOWN damages (the other is dead). As applied to this case, we have unknown persons (39,999 others) and unknown damages (or rather unproven damages). Actually that is a very good point about the testimony about availability over the Internet. It was only claimed that it was. To whom was that person "chatting": Another MPAA employee, Somebody putting him on ["we seek the grail...".."I told him we already got one"]...it's actually irrelevant to the DMCA but another of the plaintiffs smoke and mirrors. Jeme A Brelin @eon.law.harvard.edu on 07/28/2000 05:06:24 PM Please respond to dvd-discuss@eon.law.harvard.edu Sent by: owner-dvd-discuss@eon.law.harvard.edu To: dvd-discuss@eon.law.harvard.edu cc: Subject: Re: [dvd-discuss] Summers v. Tice and hearsay On Fri, 28 Jul 2000, Eric Eldred wrote: > I don't think there is even that much evidence. The > proper analogy would be if the plaintiff dropped > dead "at or about the same time" as one defendant > bought a shotgun. There has been no evidence of > shotgun pellets in the corpse. Eric and related people who have brought up case law regarding this issue, coudl you write up this argument a bit more formally and present it to the group by Monday? I think this is the strongest argument on the application of Summers to this case. There is no evidence that any of these movies were ripped from DVD. Remember that no evidence should be brought into this brief... don't try to explain what other methods are available. Just note that the plaintiff failed to bring evidence that even the method was like that in dispute in this case. > I don't think there is that much evidence. One movie > has been testified to be traded, after hours of > trying, and possible entrapment. The other offers > could be bogus, we have no idea if there are real > movies out there. Plaintiffs should be compelled to > introduce that evidence. Their claim that they don't > need to, because of automatic invocation of the > anticircumvention clause without having to show > copying, is neither fair nor in line with the only > interpretation of the DMCA that makes sense in light > of copyright law and the legislative history. It > denies defendants the right to a fair trial and is > hearsay. I agree and this is strong. Comments? J. -- ----------------- Jeme A Brelin jeme@brelin.net ----------------- [cc] counter-copyright http://www.openlaw.org From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 20:48:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA23168 for dvd-discuss-outgoing; Fri, 28 Jul 2000 20:48:32 -0400 Received: from dial206.roadrunner.com (sf-du206.cybermesa.com [209.12.75.206]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA23122 for ; Fri, 28 Jul 2000 20:48:29 -0400 Received: (from paul@localhost) by dial206.roadrunner.com (8.8.7/8.8.7) id SAA03062 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 18:49:08 -0600 Date: Fri, 28 Jul 2000 18:49:07 -0600 From: Paul Fenimore To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] oops, read this one (comments on comments on "Authority of the copyright owner) Message-ID: <20000728184907.B2785@localhost> References: <20000728181641.O711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0.1i In-Reply-To: <20000728181641.O711@localhost>; from fenimore@roadrunner.com on Fri, Jul 28, 2000 at 06:16:44PM -0600 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 06:16:44PM -0600, Paul Fenimore wrote: > "Copying is something that requires access" is ok, even for > commercial-access, *but* it is incorrect to assume that the technological > measure which protects access to the work prevents copying! This is not in > fact a paradox. *It is the reason the plaintiffs' reading of the law > is totally broken*. One must get access to the work to copy. Ciphertext > is always good enough to start producing copies. But because cryptography > used to solve the privacy problem (i.e. "encryption") denies all non-copying > use of the plaintext, the *commerce* is protected, even though copying > can *never* be prevented after publication (short of destroying every > copy, or all the plaintext and all the keys). Reload. Bang. The ciphertext can still be copied. The bit in parenthesis should be "short of destroying every copy". The bit about "all the plaintext and all the keys" is baloney. > Ultimately, people pay > for a work because of the "non-copying" uses (I've arbitrarily and > capriciously defined the copy that enters you eyes to not be a copy > because the law calls that reading, performance, viewing, etc.) > It is possible to protect the /commercial/ aspect of access without > denying access to the ciphertext. Thus we get protection of the commerce > without protection of the work against copying. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 21:02:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA24508 for dvd-discuss-outgoing; Fri, 28 Jul 2000 21:02:40 -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 VAA24505 for ; Fri, 28 Jul 2000 21:02:39 -0400 Message-ID: <20000729010138.9183.qmail@web509.mail.yahoo.com> Received: from [131.44.121.4] by web509.mail.yahoo.com; Fri, 28 Jul 2000 18:01:38 PDT Date: Fri, 28 Jul 2000 18:01:38 -0700 (PDT) From: Bryan Taylor Subject: [dvd-discuss] Pretextual 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: > To satisfy the "requires" test in (a)(3) (I think Robert Thau is a > supporter and originator of this view), the cryptography cannot > be pretextual, the keys have to be different from one another and > "random-looking". Forgive my ignorance. What does 'pretextual' mean? I've seen this term of art used by several folks here, but I don't understand what the definition and implications are. Is there a statue or precedent that relates to this? __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 21:30:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA25710 for dvd-discuss-outgoing; Fri, 28 Jul 2000 21:30:54 -0400 Received: from mercury.Clearway (c100.clearway.com [199.103.231.100]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA25707 for ; Fri, 28 Jul 2000 21:30:53 -0400 Received: by c100.clearway.com with Internet Mail Service (5.5.2650.21) id <3ZC3QM4S>; Fri, 28 Jul 2000 21:35:33 -0400 Message-ID: <611C0CE12596D311B466009027D5E7591E4EB3@c100.clearway.com> From: Leland Ray To: "'dvd-discuss@eon.law.harvard.edu'" Subject: RE: [dvd-discuss] Let's not miss another deadline! Date: Fri, 28 Jul 2000 21:35:32 -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 To play devil's advocate, I like Robert's essay, too, but I read the statute in a much different way. (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. ---- "application of information" covers active information, an access test. For example, tpm logic might be: input "enter your phone number" a if ( a == 5551212 ) then print "you have access!" play thedvd else print "you pirate!" endif "process or treatment" covers an algorithm that does not actually ask for anything. For instance: if (iam == alicensedplayer) then play thedvd else print "you pirate!" endif The "authority" of the copyright owner was the decision that results in placing the "play thedvd" statement in the if clause. The tpm is the if statement. But even if I were to accept this reading, I might still consider DeCSS and other programs to not be circumvention. The reason why is that DeCSS still applies the process or treatment that is the tpm, and in fact, it even checks the DVD for title keys. From dvd-discuss-owner@eon.law.harvard.edu Fri Jul 28 22:15:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id WAA28093 for dvd-discuss-outgoing; Fri, 28 Jul 2000 22:15:15 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id WAA28089 for ; Fri, 28 Jul 2000 22:15:01 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id WAA16854 for dvd-discuss@eon.law.harvard.edu; Fri, 28 Jul 2000 22:18:26 -0400 Date: Fri, 28 Jul 2000 22:18:21 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Message-ID: <20000728221821.A16742@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from Michael.A.Rolenz@aero.org on Fri, Jul 28, 2000 at 05:38:06PM -0700 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Fri, Jul 28, 2000 at 05:38:06PM -0700, Michael.A.Rolenz@aero.org wrote: > > The problem I have with the analogy is that in that instance, jointly and > separate liability was against KNOWN persons (the hunters) for KNOWN > damages (the other is dead). As applied to this case, we have unknown > persons (39,999 others) and unknown damages (or rather unproven damages). > > Actually that is a very good point about the testimony about availability > over the Internet. It was only claimed that it was. To whom was that person > "chatting": Another MPAA employee, Somebody putting him on ["we seek the > grail...".."I told him we already got one"]...it's actually irrelevant to > the DMCA but another of the plaintiffs smoke and mirrors. Yeah, I actually got the idea after remembering my amazement that a technology security expert would actually go to Slashdot--for information instead of entertainment. Boy, we could have had a lot of fun with her if she had indeed posted something serious! From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 00:24:29 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA30865 for dvd-discuss-outgoing; Sat, 29 Jul 2000 00:24:29 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA30862 for ; Sat, 29 Jul 2000 00:24:17 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA16949 for dvd-discuss@eon.law.harvard.edu; Sat, 29 Jul 2000 00:27:44 -0400 Date: Sat, 29 Jul 2000 00:27:39 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Dan Gillmor column 7/27 Message-ID: <20000729002739.B16930@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu http://www.mercurycenter.com/svtech/columns/gillmor/docs/dg072800.htm Music industry can't win Dan Gillmor connects Napster and the MPAA suit: .... "The refusal to face reality is equally relevant to another amply funded industry group facing off against another technology in New York: Hollywood studios are trying to prevent a tiny magazine from posting certain software code on a Web site. "The code in question, called DeCSS, permits people to view scrambled DVD videos without owning a DVD player that has been licensed by the industry. This has caused such paranoia that the industry not only wants to force Web sites to remove the software, but also wants to prohibit U.S. Web sites from even posting hyperlinks to overseas computers where the actual code lives. "The entertainment industry's approach to any technology that might permit unauthorized copying has always been to try and stamp it out. Now that it has co-opted Congress into enacting the pernicious Digital Millennium Copyright Act, which among other things makes it illegal even to possess any software tool that *might* be used to break copy protection, the industry has won some key decisions. "There are signs that the federal judge hearing the DeCSS case has recognized the free-speech issues and may actually reject some of the motion-picture industry's arguments. But this fight will go on for a long time, and some people who have the audacity to tamper with the copyright owners' right to control all uses of their material will find themselves spending lots of money on legal fees." -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 01:21:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA31214 for dvd-discuss-outgoing; Sat, 29 Jul 2000 01:21:01 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA31210 for ; Sat, 29 Jul 2000 01:21:00 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id WAA02634 for ; Fri, 28 Jul 2000 22:20:31 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Fri, 28 Jul 2000 22:18:42 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <200007281142.HAA28309@soggy-fibers.ai.mit.edu> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Robert S. Thau, on Friday, July 28, 2000 4:43 AM, wrote > >Jim Taylor writes: > > The issue of access control is not that it is denied or not, only that > > access is limited to a licensed system that takes steps to protect the > > plaintext content from being copied. This representation of the plaintiff's > > interpretation is inaccurate. > >I'm not sure I understand. That sentence doesn't make any >representation of the plaintiffs' interpretation at all --- it says >what it isn't, but not what it is. > >To put it another way: They do claim that CSS provides access >control. (If not, what are we arguing about?) And in the ordinary >course of its operation, it never does deny access. I understand that >the plaintiffs have a view of what constitutes "access control" in >which that all makes sense --- and that's what the sentence says, it >seems to me. So I'm not sure what the problem is. I think the confusing part is what does "access control" mean? I believe the plaintiffs view access control as controlling the environment in which the work is accessed. They don't claim that CSS denies access (we all agree that it can't). They represent that CSS controls access to the work by limiting descramblers to the set that is authorized by them to descramble without making the cleartext easily copyable. (I should clarify: the cleartext CSS is concerned with is decrypted encoded video, not decrypted decoded video.) >Ummm... the plaintiffs' position, as I understand it, is that CSS >decryption may only be performed with their "authority". If that >doesn't mean contractual privity between them and whoever decrypts the >work, then what do you think it means? I think (and I think they think) it means that authority refers to their authorization of "a process or a treatment" (DMCA language). It has nothing to do with the person decrypting the work. Licensed players are authorized, unlicensed players are not. The contract is between the copyright holder and the creator of the descrambler (the process or treatment), via an intermediary (DVD CCA). >I don't think it *can* mean "decryption in any manner which copyright >holders have decided, in privileged conversations with their attorneys >which will never be admissible in court, to deem as authorized" --- if >it means that, then us poor souls outside that smoke-filled room have >no way of knowing, even in principle, whether we are violating the >law. Exactly. I think it *does* mean decryption only in a manner authorized (by CSS license, not smoky conversations). But of course the plaintiffs maintain that unlicensed implementations should not be allowed to exist, so in their view no poor soul would ever have the opportunity to use a player that violates the law. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 02:14:52 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA31685 for dvd-discuss-outgoing; Sat, 29 Jul 2000 02:14:52 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA31682 for ; Sat, 29 Jul 2000 02:14:50 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA01061 for ; Fri, 28 Jul 2000 23:14:22 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? Date: Fri, 28 Jul 2000 23:12:29 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar, on Friday, July 28, 2000 4:25 AM, wrote >this is a subtle misconception. DeCSS does not *enable* copying. From the >pure technical side of things this is what happens: [snipped details about how a VOB file is decrypted by DeCSS] >so in fact, if properly analyzed, the DeCSS utility does not enable >copying. The DeCSS utility only gives access to the encrypted digital >content, but does not 'enable' copying - copying was already possible and >enabled by the OS! DeCSS *uses* the OS's *existing* copy feature. The >LiViD player for example does not use the OS's copy feature, it sends the >decrypted content out to the videocard to display it. We're arguing tangentially here. I hate to get into semantic minutiae, but maybe that's the only way to make things clear. Let's try a few definitions of copying in the context of DVD: 1) "copying data from disc to buffer to buffer within a computer system in order to read, decrypt, and possibly decode and view a movie" 2) "copying files from disc to hard disk, and perhaps giving someone else a copy" Which of these is closer to the average person's understanding of "copying"? If I wanted to copy a DVD movie onto DVD-R to give to a friend, I would use DeCSS. I would run the program; it would decrypt and copy files to my hard drive (which a DVD CCA-licensed player never does). I can then copy those decrypted files to a DVD-R that my friend can play in his computer (or in his DVD player if I include the IFO files). If I tried to copy the VOB files without DeCSS I would get an error message from the OS. If I were smart enough to start a licensed DVD player that set the authorization flag in the drive, I could then copy the encrypted files to my hard disk and then to a DVD-R, but the disc would not play in my friend's player. How can anyone argue that DeCSS did not enable me to make a functional copy? (Sure, I could use one of many other means to copy the movie, but that's a separate argument.) >There is no technical and mathematical difference between the information >contained in an encrypted an a decrypted work. So what? There is a *functional* difference. I can send an encrypted file over the Internet, but without decryption keys it will be difficult or impossible for the recipient to view it. By decrypting the file and placing the decrypted contents on a hard disk, DeCSS makes it possible for the decrypted file to be copied and distributed. Perhaps the best way to clarify what I think most people mean when they talk about copying is to always say "copied and distributed." DeCSS enables DVDs to be copied and distributed. Is that better? I understand Paul's original point was that DeCSS does not enable copying in the strict sense of copying data. But I hope I have made my point that to a "man on the street" (and certainly to a judge and to the MPAA), copying is much more than moving data from disc to buffer to buffer. To extrapolate from there, a reasonable person would agree that making a copy is circumventing the technological measure that was intended to prevent it. DeCSS is party to this circumvention. (In anticipation of responses: Yes, DeCSS has other purposes, this is key to its defense. Yes, preventing all copying goes against the concept of fair use. Yes, all players decrypt and copy data in order to make it viewable. Yes, it's impossible to completely protect a work with technological means and still have it accessible by mass audiences.) >A good and effective demonstration of this would be to record a DVD movie >where the digital content is not an actual movie, but the digital bits of >an email which is sent from X to Y. The only way to get to the contents of >the DVD movie (the email) would be to decrypt via DeCSS. The DMCA >prohibits this - thus it prohibits free speech. [the 'play' button will >show only garbage, because while the email would be in MPEG format, the >bits themselves would look like random noise on the screen.] Excuse me, but this is silly. If I write a letter, then scribble over it with a black marker, then by your analogy I have prohibited free speech. >[AFAIK there are no tools right now to 'wrap' non-movie digital content >into DVDs - what a pity.] Actually, you could take just about any non-movie content and render it as motion video for DVD. Your e-mail, for example, could be rendered as a graphic in a still image. Ingo Molnar, on Friday, July 28, 2000 6:00 AM, wrote > >On Fri, 28 Jul 2000, Robert S. Thau wrote: >> Of course, the hard part of this demo is writing the CSS key sectors >> on the DVD (these are masked off on all commercially available >> DVD-RWs, IIRC). [...] > >how are DVDs then written to DVD_RWs? Is it possible only in an >unencrypted format? Yup. You cannot write keys in the lead-in of any recordable DVD media (DVD-R(G), DVD-R(A), DVD-RW, DVD-RAM, DVD+RW). Without keys, encrypted files won't play. If the files are decrypted by DeCSS before being copies to recordable media, then they will play. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 02:26:16 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA31796 for dvd-discuss-outgoing; Sat, 29 Jul 2000 02:26:16 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA31793 for ; Sat, 29 Jul 2000 02:26:15 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA18047 for ; Fri, 28 Jul 2000 23:25:43 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: Fri, 28 Jul 2000 23:23:50 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) Importance: Normal In-Reply-To: X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar, on Friday, July 28, 2000 11:02 AM, wrote > >On Fri, 28 Jul 2000, Leland Ray wrote: > >> Hmmm, so now are the Linux licensed players going to work at all? >> >> I could always hack the kernel to get at any page in memory for any >> process. > >the same is possible in Windows as well (witness DVD ripper software). Incorrect. Most DVD ripper software works by grabbing the decrypted, decoded, fully rendered video frames from DirectShow memory buffers. This is actually not prohibited by the CSS license. (That is, the CSS license doesn't require licensees to prevent decoded decrypted video from being intercepted.) >This is a word play by the DVD CAA which has no technological meaning, eg. >the decrypted content *will* be automatically copied by the CPU from main >RAM into the L2 cache, from L2 cache into L1 cache, so copying does take >place. This CSS-licensing requirement just tries to look like as if this >was about copying. Does anyone honestly believe that these kinds of contrived arguments on technical details of the way bits are transferred have any merit? It's like saying, "No, your honor, I didn't drown him, since technically there are water molecules suspended in the air all the time, even in our lungs." -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 02:50:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA31957 for dvd-discuss-outgoing; Sat, 29 Jul 2000 02:50:53 -0400 Received: from snipe.prod.itd.earthlink.net (snipe.prod.itd.earthlink.net [207.217.120.62]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA31954 for ; Sat, 29 Jul 2000 02:50:52 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by snipe.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA22340 for ; Fri, 28 Jul 2000 23:50:24 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) Date: Fri, 28 Jul 2000 23:48:28 -0700 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 (9.0.2911.0) Importance: Normal In-Reply-To: <5A8391CA2D9ED311AFAA080009D982B10B1D5E@mail2.onetouch.com> X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Richard Hartman, on Friday, July 28, 2000 10:30 AM, wrote > >Read that again: "-licensed- implementations". This indicates >that what you have is a -contractual- protection measure, not >a technical one. No, the technical protection measure is very real. The plaintiffs maintain that DMCA then allows authorization to be established by contract. >And how can "CSS" grant authority? Authority must be granted >by the copyright holder or designated agents. A "chain of >custody" for the granting of authority must be visible. Where >is this chain? Sorry, I was sloppy. The copyright owner signs a license to use CSS to encrypt ("protect") a work. The maker of a player signs a license to be authorized to make a player that conforms to the desires of the copyright holder that access to the work be controlled (meaning the work can only be used in a way that inhibits copying [do I need to define copying as making and distributing copies, as opposed to moving bits around in a computer?]). The chain goes from copyright holder through DVD CCA to player maker. Note that it doesn't involve the viewer. >You can publish the work with red lines all over it. But >you can not then control the manufacture of red cellophane >and prosecute the people who create their own red dye filters. > >(hey, this started out as an off-the-cuff analogy, but it >does fit the circumstances here fairly accurately, doesn't it?) I like it. But I think the plaintiffs could make a reasonably good argument that their cellophane is a special color that can't be easily manufactured. They will also argue (less successfully) that there is no other reason to make that color of cellophane. >But -- and this is an important but -- nobody has informed >the user that only certain devices may legitimately be used >to access the work. If you are going to claim this as part >of your authorization chain, the user -must- be informed. The user is not part of the authorization chain. The user does not need to sign a license, does not need to be authorized, and does not need to be informed. >Copyright in the past has always been focussed towards the >use to which the work is put (i.e. copying for personal use >vs. copying for mass redistribution). That is to say that >it is the -intent- behind the act that determines whether >the use is acceptable or not. Agreed. But how can a TPM determine intent? It can't. >> The next section (encryption not required for access control) >> makes way too >> much of nitpicky points of semantics. It doesn't matter how >> CSS works. It >> was clearly designed for the purpose of access control, > >No, no, no. It was clearly -not- designed for the purpose >of access control as it makes no check on whether access is >to be permitted. It operates in the same manner whether the >disk is authorized or unauthorized (e.g. Hong Kong copy) and >whether the player is authorized or unauthorized (e.g. mfgr >signed the license or DeCSS). If there is no difference in >operation, there is not -control-. We're back to definition of access control. It's not a case of allowing or denying access. It's a case of controlling the manner of access. It's impossible for any TPM, no matter how sophisticated, to truly control access in harmony with copyright law. Divx-like schemes with modems are unrealistic because they put too many restrictions on use (what if I live in the boonies with no modem?). And they still don't allow fair use. No TPM can tell the difference between a teacher copying an excerpt from a movie to show to a class, and someone making a copy of a movie to give to a friend, or someone making a copy of a movie to watch in their van.) With this understanding, the plaintiffs choose to interpret "access control" as controlling access so that copying is difficult. This is what the article should address (which it does, but with too many tangential arguments). -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 04:29:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id EAA32381 for dvd-discuss-outgoing; Sat, 29 Jul 2000 04:29:04 -0400 Received: from tbird.iworld.com ([63.236.72.237]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id EAA32378 for ; Sat, 29 Jul 2000 04:28:57 -0400 Received: (from nobody@localhost) by tbird.iworld.com (8.10.2/8.10.2) id e6T8SmA02051; Sat, 29 Jul 2000 04:28:48 -0400 Date: Sat, 29 Jul 2000 04:28:48 -0400 Message-Id: <200007290828.e6T8SmA02051@tbird.iworld.com> X-Authentication-Warning: tbird.iworld.com: nobody set sender to rmarian@linuxstart.com using -f 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 Subject: Re: RE: [dvd-discuss] Let's not miss another deadline! Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Rares Marian wrote: Leland Ray wrote: >But even if I were to accept this reading, I might still consider >DeCSS and other programs to not be circumvention. The reason >why is that DeCSS still applies the process or treatment that is >the tpm, and in fact, it even checks the DVD for title keys. Actually I think this is the strongest point because it demonstrates the key is glued to the lock. The question then is: Is DeCSS like buying a car, removing the door to access a "secret" key that is permanently in the ignition, turning the engine on, then removing the car from the key (lol! but that's exactly what happens), so that you can continously drive without needing the ignition key nor the door key? (title key being analogous to the ignition key) Then Mr. Valenti can you prove I didn't pay for the car? No you cannot. Go back to Hollywood, Mr. Valenti. Or from the another point of view. Suppose I cracked a system (getting root = breaking door lock), accessed the files I needed by cd'ing through directories (root permission access = engine on), then copied the files I need access to elsewhere so I would have access to them because I don't have the proper keys to enter the password. Can you prove I don't own those files, the shell account, and the computer? No. Then find a day job. Rares Thanks to Free Unices, we've crawled back UP to 70's. ---------------------- Do you do Linux? :) Get your FREE @linuxstart.com email address at: http://www.linuxstart.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 05:05:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA00560 for dvd-discuss-outgoing; Sat, 29 Jul 2000 05:05:58 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA00557 for ; Sat, 29 Jul 2000 05:05:57 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 94B717E1B5; Sat, 29 Jul 2000 11:05:25 +0200 (CEST) Date: Sat, 29 Jul 2000 11:14:21 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? 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 Jul 2000, Jim Taylor wrote: > >A good and effective demonstration of this would be to record a DVD movie > >where the digital content is not an actual movie, but the digital bits of > >an email which is sent from X to Y. The only way to get to the contents of > >the DVD movie (the email) would be to decrypt via DeCSS. The DMCA > >prohibits this - thus it prohibits free speech. [the 'play' button will > >show only garbage, because while the email would be in MPEG format, the > >bits themselves would look like random noise on the screen.] > > Excuse me, but this is silly. If I write a letter, then scribble over > it with a black marker, then by your analogy I have prohibited free > speech. i believe your analogy is wrong. The right analogy is: 'if i write a letter, then put it into an envelope i purchased, send the envelope to a friend, but the recipient cannot open it, because the envelope-producing company insists that "opening the envelope" must only be done in an authorized way, and the letter can be only read from 100 yards distance. While this might work if you write 10 yards big letters, but it's an unreasonable restraint on the recipient's ability to read the letter.' 'envelope' == 'encryption' 'opening the envelope' == 'decryption' 'reading the letter from 100 yards distance' == 'only analogue playback permitted' '10 yards letter' == 'movie' 'normal size letter' == 'digital email embedded in the DVD' (i wont pursue this any longer if this reasoning is somehow obviously flawed) > >[AFAIK there are no tools right now to 'wrap' non-movie digital content > >into DVDs - what a pity.] > > Actually, you could take just about any non-movie content and render it as > motion video for DVD. Your e-mail, for example, could be rendered as a > graphic in a still image. my point was to demonstrate content that is *impossible* to read without getting to the unencrypted digital content. If you can see it on screen then that form of speech was not restrained. > >how are DVDs then written to DVD_RWs? Is it possible only in an > >unencrypted format? > > Yup. You cannot write keys in the lead-in of any recordable DVD media > (DVD-R(G), DVD-R(A), DVD-RW, DVD-RAM, DVD+RW). Without keys, encrypted files > won't play. If the files are decrypted by DeCSS before being copies to > recordable media, then they will play. i believe that the whole MPAA argument relies on the fact that it's *only* the MPAA who own copyrights within encrypted DVDs. If we could produce CSS-encrypted DVDs that are playable via LiViD, then i believe the MPAA's argument becomes vulnerable: who the hell is the MPAA to restrict *my* copyright? i believe such a demonstration would show how flawed MPAA's assertion is, that decrypting CSS must only be done by authorized people/players. I believe this demonstration makes sense even if the player keys are not stored on the DVD, because we could play it with LiViD. This also demonstrates that it's the *player keys*, not the *CSS algorithm*, that is the 'authorization information' to play DVDs. Ingo From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 05:11:01 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA00685 for dvd-discuss-outgoing; Sat, 29 Jul 2000 05:11:01 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA00682 for ; Sat, 29 Jul 2000 05:11:00 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id F1CD07E1B5; Sat, 29 Jul 2000 11:10:32 +0200 (CEST) Date: Sat, 29 Jul 2000 11:19:28 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk 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 Jul 2000, Jim Taylor wrote: > >> I could always hack the kernel to get at any page in memory for any > >> process. > > > >the same is possible in Windows as well (witness DVD ripper software). > > Incorrect. Most DVD ripper software works by grabbing the decrypted, > decoded, fully rendered video frames from DirectShow memory buffers. > This is actually not prohibited by the CSS license. (That is, the CSS > license doesn't require licensees to prevent decoded decrypted video > from being intercepted.) the reason is that they simply cannot forbid people reading memory, and it's simply impossible to prevent digital content from being intercepted in one way or another. You can get at any memory page in any program in Windows as well (start up a debugger) - in some OSs it's more obvious, in some OSs it's less obvious, but it's possible in every x86-class system. so you can 'hack Windows to get at every page', in fact it's a regular OS feature. (this is what debuggers use.) You can get to system-memory, or anything. On any OS where you can write a 'kernel mode' device driver you automatically have access to all RAM - Q.E.D. Ingo From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 05:37:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA00903 for dvd-discuss-outgoing; Sat, 29 Jul 2000 05:37:03 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA00900 for ; Sat, 29 Jul 2000 05:36:59 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id A44A87E1B5; Sat, 29 Jul 2000 11:36:30 +0200 (CEST) Date: Sat, 29 Jul 2000 11:45:26 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? 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 Jul 2000, Jim Taylor wrote: > If I wanted to copy a DVD movie onto DVD-R to give to a friend, I > would use DeCSS. I would run the program; it would decrypt and copy > files to my hard drive (which a DVD CCA-licensed player never does). I > can then copy those decrypted files to a DVD-R that my friend can play > in his computer (or in his DVD player if I include the IFO files). If > I tried to copy the VOB files without DeCSS I would get an error > message from the OS. If I were smart enough to start a licensed DVD > player that set the authorization flag in the drive, I could then copy > the encrypted files to my hard disk and then to a DVD-R, but the disc > would not play in my friend's player. [...] he could play it with the LiViD player (am i correct?), so that copy is functional as well. So in fact what DeCSS does is a format conversion, where the 'converted format' is in fact a new file on disk. to use a different analogy. Say i have a document written in an ancient version of Wordperfect. I write a program to convert this document to Microsoft Word format. The program reads the Wordperfect file, converts the contents and produces a new .doc file. Suddenly my friend (who has a Windows box and Office) can view the document, and might be able to infringe on someone else's copyright! He couldnt view the Wordperfect version before. By your argument my program 'enables copying', just because it converts to a more popular format which is known by more people? I dont think so. while in the DVD case we have a format is known only by 'authorized' software and hardware, and writing and reading this format is not possible with commodity hardware, the point is still true i believe. > How can anyone argue that DeCSS did not enable me to make a functional > copy? (Sure, I could use one of many other means to copy the movie, > but that's a separate argument.) because DeCSS converts the format into another format. It's true that this other format is much more popular, but that is a result of the restrictive licensing practices of the DVD CCA, and is not the fault of DeCSS's author(s). > >There is no technical and mathematical difference between the > information >contained in an encrypted an a decrypted work. > > So what? There is a *functional* difference. I can send an encrypted > file over the Internet, but without decryption keys it will be > difficult or impossible for the recipient to view it. [...] LiViD will play it, right? Again, it's the 'UDF filesystem' that enables copying of VOB files (encrypted of unencrypted), not DeCSS. DeCSS only decrypts the VOB file to a more popular format. (and the encrypted format did not prevent viewing, so it's a functional copy.) > I understand Paul's original point was that DeCSS does not enable > copying in the strict sense of copying data. But I hope I have made my > point that to a "man on the street" (and certainly to a judge and to > the MPAA), copying is much more than moving data from disc to buffer > to buffer. ok, i tried to provide a few analogies (which i hope are fair and substantive). If this is futile then i'll stop. > To extrapolate from there, a reasonable person would agree that making > a copy is circumventing the technological measure that was intended to > prevent it. DeCSS is party to this circumvention. circumvention, as defined by 1201, is a simple definition, and DeCSS is 'circumventing a technological measure' - just as much as unzip.exe. 'Circumvention' in the 1201-sense is equivalent to 'convert content from format-A to format-B' - so it's a meaningless definition, it only serves to mis-label legitimate technologies to hides the real purpose of the law under the umbrella of 'antipiracy'. IANAL. Ingo From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 05:49:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id FAA01015 for dvd-discuss-outgoing; Sat, 29 Jul 2000 05:49:48 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id FAA01012 for ; Sat, 29 Jul 2000 05:49:47 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id FAA13715; Sat, 29 Jul 2000 05:49:20 -0400 (EDT) Message-ID: <3982A8F3.DA192F0D@mit.edu> Date: Sat, 29 Jul 2000 05:50:43 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk 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 Ingo Molnar wrote: > > On Fri, 28 Jul 2000, Jim Taylor wrote: > > > >> I could always hack the kernel to get at any page in memory for any > > >> process. > > > > > >the same is possible in Windows as well (witness DVD ripper software). > > > > Incorrect. Most DVD ripper software works by grabbing the decrypted, > > decoded, fully rendered video frames from DirectShow memory buffers. > > This is actually not prohibited by the CSS license. (That is, the CSS > > license doesn't require licensees to prevent decoded decrypted video > > from being intercepted.) > > the reason is that they simply cannot forbid people reading memory, and > it's simply impossible to prevent digital content from being intercepted > in one way or another. You can get at any memory page in any program in > Windows as well (start up a debugger) - in some OSs it's more obvious, in > some OSs it's less obvious, but it's possible in every x86-class system. > > so you can 'hack Windows to get at every page', in fact it's a regular OS > feature. (this is what debuggers use.) You can get to system-memory, or > anything. On any OS where you can write a 'kernel mode' device driver you > automatically have access to all RAM - Q.E.D. > > Ingo There is no need to prevent you from reading system memory. Instead they follow the same basic pattern: get around technological limitations by using the legal system. Make it a violation of the player license to try to read memory while the player is running. For instance, I fairly certain Mac DVD players won't run if the most common Mac debugger is running. Granted, these kinds of restrictions do not stop a determined pirate but from their point of view it "keeps honest people honest" (and I think that phrase is sickening doublespeak: honest people do not need to be kept honest. What they're really saying is that they think their customers are dishonest thieves who need to be locked away from DVDs (or VCRs or sheet music, or FM radio, or cassette tapes or photocopiers, whatever the bogeyman of the week is) because they will destroy IP industries given half a chance.) and gives them yet another way to shut down tools that do things with their movies they don't want done. Now that I've thought about it licensing restrictions will be how they police any Linux players as well. It will be a violation of the player license agreement to run it on any version of Linux they have not specifically sanctioned (no modified kernels, no additional device drivers and no extra applications that might do something "bad") I wonder how popular those players will be? - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 06:16:47 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id GAA02037 for dvd-discuss-outgoing; Sat, 29 Jul 2000 06:16:47 -0400 Received: from chiara.elte.hu (chiara.elte.hu [157.181.150.200]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id GAA02034 for ; Sat, 29 Jul 2000 06:16:45 -0400 Received: by chiara.elte.hu (Postfix, from userid 17806) id 1C2177E1B5; Sat, 29 Jul 2000 12:16:17 +0200 (CEST) Date: Sat, 29 Jul 2000 12:25:15 +0200 (CEST) From: Ingo Molnar To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] the definition of 'Circumvention' In-Reply-To: <20000728164647.N711@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 Fri, 28 Jul 2000, Paul Fenimore wrote: > > maybe i'm mistaken, but appears to me that 1201 has it's own definition > > for 'circumvention', 1201(a)(3)(A) says: > > [ ... ] > > > so to repeat: > > > > DeCSS *does* 'circumvent' in 1201-sense > > Circumvention is only possible if (note that we're fighting up hill on > this set of tests, the district court says that the copyright owner's > say-so establishes authority): I think we are talking about different things, am i mis-reading the 1201? While i agree with your conclusion, i think there are different terms defined in the 1201. Two major terms are defined: 'circumvent a technological measure' (lets call this 'Circumvent') and 'effectively controls access to work' (lets call this 'Effective Control'. My reading of the 1201 is that Circumvent is defined very broadly, but it's not illegal to Circumvent. It's illegal to Circumvent an Effective Control. The 1201 defines Circumvent in very plain words, 1201(a)(3)(A): + (3) As used in this subsection - o (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 this definition has only two major (and obvious) parts: to 'decrypt', 'without the authority of the copyright owner'. Both obviously happen in the DeCSS case. this definition is a silly one, because it defines lots of technologies to be Circumvention, although the everyday word 'circumvention' does not apply to those cases. One such example is this: use zip.exe on a file in your system, then execute unzip.exe on this (now compressed) file. This decompression act was 'Circumvention', as defined by the 1201. It's silly, but laws can stretch definitions in such ways, correct? 'Circumvention' alone is not unlawful. It's 'to Circumvent an Effective Control' that the law says to be unlawful. > 1. There is descrambling (or the application of a process, etc), > > 2. there is no authority, > > 3. the technological measure protects access to work, and > > 4. the technology requires the authority of the copyright owner to > operate correctly (i.e. this is 1201-authority, not 106-authority) > > are all satisfied. Otherwise there is no act of circumvention. 1,2,3,4 correctly describes what the law made unlawful. But this IMHO and IANAL is not called 'an act of circumvention'. Only 1+2 is called 'Circumvention', 3+4 is called 'Effective Control'. > ==> We have descrambling by DeCSS without circumvention. In fact any > act of undoing CSS is not-circumvention. i believe this basic misunderstanding is why Kaplan says 'DeCSS does Circumvent, obviously'. And i perceive this to be one of the reasons why he got testy in the transcripts, because the defense team insisted that DeCSS 'does not circumvent'. It does 'Circumvent', but unzip.exe does so as well. (IANAL, so i might be completely wrong here.) Ingo From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 07:48:25 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id HAA02599 for dvd-discuss-outgoing; Sat, 29 Jul 2000 07:48:25 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id HAA02596 for ; Sat, 29 Jul 2000 07:48:23 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id GAA31933 for ; Sat, 29 Jul 2000 06:47:37 -0500 Message-ID: <3982C497.12D32E6F@mninter.net> Date: Sat, 29 Jul 2000 06:48:39 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] the definition of 'Circumvention' 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 Ingo Molnar wrote: > i believe this basic misunderstanding is why Kaplan says 'DeCSS does > Circumvent, obviously'. And i perceive this to be one of the > reasons why he got testy in the transcripts, because the defense > team insisted that DeCSS 'does not circumvent'. It does > 'Circumvent', but unzip.exe does so as well. (IANAL, so i might be > completely wrong here.) > > Ingo We are in complete disagreement. Circumvention requires the disauthorization of the copyright holder, you got that part right, but DeCSS does not necessarily circumvent. Saying DeCSS necessarily circumvents simply because "it is obvious" results in absurd contradictions with reality. It constitutes fraud with every sale of a DVD. It constitutes fraud with every sale of a DVD player. It is tautological. It is unknowable a priori, and thus impossible to avoid breaking the law. It is impossible to defend against. We've gone over this list of contradictions a few hundred times. The plaintiffs should have had the burden of demonstrating to the court on what premises they came to the conclusion that DeCSS defies their authority, and they did not. So we are all going to have to live with each of these contradictions and get dragged into court whenever something gets the studios hot under the collar. This is quite abusive and nonsensical. The plain fact that we do not know how to stay on the right side of the law demonstrates the fact that DeCSS is not necessarily unauthorized simply by the instantiation of the lawsuit. There must be criteria the studios use to determine disauthorization, and we must know them. That the plaintiffs have been permitted to continue the lawsuit without a plain explanation of what is authorized and what is not flummoxes me. Have I said it enough ways? -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 10:22:11 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id KAA04865 for dvd-discuss-outgoing; Sat, 29 Jul 2000 10:22:11 -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 KAA04862 for ; Sat, 29 Jul 2000 10:22:10 -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:2.21) with ESMTP id KAA14681 for ; Sat, 29 Jul 2000 10:21:43 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id KAA02234; Sat, 29 Jul 2000 10:21:41 -0400 (EDT) Date: Sat, 29 Jul 2000 10:21:41 -0400 (EDT) Message-Id: <200007291421.KAA02234@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Bravo "Authority of the copyright owner" in 1201(a) In-Reply-To: References: <200007281142.HAA28309@soggy-fibers.ai.mit.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim Taylor writes: > I think the confusing part is what does "access control" mean? I believe the > plaintiffs view access control as controlling the environment in which the > work is accessed. They don't claim that CSS denies access (we all agree that > it can't). They represent that CSS controls access to the work by limiting > descramblers to the set that is authorized by them to descramble without > making the cleartext easily copyable. (I should clarify: the cleartext CSS > is concerned with is decrypted encoded video, not decrypted decoded video.) Yes, and folks here tend to disagree with the plaintiffs' view. See Bryan Taylor's essay on the subject for more on the reasons why --- it really is complementary to mine. > Exactly. I think it *does* mean decryption only in a manner authorized (by > CSS license, not smoky conversations). But of course the plaintiffs maintain > that unlicensed implementations should not be allowed to exist, so in their > view no poor soul would ever have the opportunity to use a player that > violates the law. But from the poor soul's point of view, this is a distinction without a difference; having no access to the text of the license, we can only guess what it requires. Manufacturers have been let into the smoky room, but not us. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 11:41:48 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06391 for dvd-discuss-outgoing; Sat, 29 Jul 2000 11:41:48 -0400 Received: from hotmail.com (f131.law9.hotmail.com [64.4.9.131]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA06388 for ; Sat, 29 Jul 2000 11:41:47 -0400 Received: (qmail 49406 invoked by uid 0); 29 Jul 2000 15:40:50 -0000 Message-ID: <20000729154050.49405.qmail@hotmail.com> Received: from 209.206.24.220 by www.hotmail.com with HTTP; Sat, 29 Jul 2000 08:40:50 PDT X-Originating-IP: [209.206.24.220] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? Date: Sat, 29 Jul 2000 11:40:50 EDT 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 > >how are DVDs then written to DVD_RWs? Is it possible only in an > >unencrypted format? > >Yup. You cannot write keys in the lead-in of any recordable DVD media >(DVD-R(G), DVD-R(A), DVD-RW, DVD-RAM, DVD+RW). Without keys, encrypted >files >won't play. If the files are decrypted by DeCSS before being copies to >recordable media, then they will play. While it is true that present media and devices available at retail don't offer this feature (writing keys in the lead-in), there is nothing to prevent me from making my own media and modifying (if necessary) a drive to enable this. This is very much like creating DeCSS - it didn't exist commercially, so we had to make our own. Since this would allow individuals to make fair use archival copies of their DVDs, I could even sell these products. The so-called "asian pirates" are doing more-or-less this, except that they do it cheaper by using a stamp since they want to produce in volume. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 11:47:38 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06506 for dvd-discuss-outgoing; Sat, 29 Jul 2000 11:47:38 -0400 Received: from hotmail.com (f166.law9.hotmail.com [64.4.9.166]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id LAA06503 for ; Sat, 29 Jul 2000 11:47:37 -0400 Received: (qmail 53612 invoked by uid 0); 29 Jul 2000 15:46:40 -0000 Message-ID: <20000729154640.53611.qmail@hotmail.com> Received: from 209.206.24.220 by www.hotmail.com with HTTP; Sat, 29 Jul 2000 08:46:40 PDT X-Originating-IP: [209.206.24.220] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] Transcript, day 1, p.37: compliant players and copying to disk Date: Sat, 29 Jul 2000 11:46:40 EDT 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 "Jim Taylor" wrote: > >Does anyone honestly believe that these kinds of contrived arguments on >technical details of the way bits are transferred have any merit? It's like >saying, "No, your honor, I didn't drown him, since technically there are >water molecules suspended in the air all the time, even in our lungs." > I agree that the minutia arguments are getting silly, but it is true that CSS enables copying just about as easily as DeCSS does. Your analogy above is better written: "No your honor, we didn't create a murder weapon, we created a swimming pool - I suppose it could be used to drown a person, but so can a lot of other things." ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 16:37:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15453 for dvd-discuss-outgoing; Sat, 29 Jul 2000 16:37:03 -0400 Received: from smtp-out1.bellatlantic.net (smtp-out1.bellatlantic.net [199.45.39.156]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA15430 for ; Sat, 29 Jul 2000 16:37:02 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out1.bellatlantic.net (8.9.1/8.9.1) with SMTP id QAA19770 for ; Sat, 29 Jul 2000 16:36:31 -0400 (EDT) Message-Id: <4.1.20000729152046.01a3c5b0@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 29 Jul 2000 16:38:10 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) In-Reply-To: References: <20000728145802.M711@localhost> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar suggests that DeCSS circumvents, but not all circumvention is illegal. To which I reply that DeCSS descrambles or bypasses, but does not "circumvent" a technological measure because one can find circumvention only after concluding that there's an effective TPM protecting something it can legitimately protect. We're both reaching the same conclusion that DeCSS is legal, but the semantic difference could be important because of Kaplan's refusal to find a fair use defense to "circumvention." Kaplan's early declaration that there is no fair use defense to 1201(a) "circumvention" means that we have to inject the fair use defense before the determination of "circumvention." 1201(a)(2) bans trafficking in devices to " that effectively controls access to a work [see (a)(3)(B)]>> protected under this title." The way I read it, the definitions overlap as I've tried to indicate with the <>s above, so "circumvention" imports "technological measure that effectively controls access," which in turn imports the "with the authority of the copyright owner" language that's given us so much trouble. Moreover, both apply only to works and the exclusive rights in them "protected under this title" -- importing the traditional copyright law of 17 U.S.C. and principles of fair use that restrict it. Where the copyright owner has no right to control (a use of) his work, such that no "authority" is necessary to make that use of it, the house of cards topples and there is no circumvention. Fair use is not a defense to circumvention only if and because its guarantee is already built into the definition of circumvention. --Wendy At 11:28 PM 07/28/2000 +0200, Ingo Molnar wrote: > >On Fri, 28 Jul 2000, Paul Fenimore wrote: > >> To paraphrase Wendy Seltzer: "Circumvention is a conclusion of law, >> not a finding of fact". >> >> Right below what you've quoted from the Jan. 20th transcript, Kaplan >> turns circumvention into a finding of fact, rather than a conclusion >> of law. He does so in response to Robin Gross' reply, "It does >> descramble". Every time I read this portion of the transcript I'm left >> climbing the walls. > >maybe i'm mistaken, but appears to me that 1201 has it's own definition >for 'circumvention', 1201(a)(3)(A) says: > > o (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 > >this definition simply does not meet the everyday definition of >'circumvention'. So DeCSS, in the definition of 1201, *does* 'circumvent a >technological measure'. In the 1201-sense, 'unzip.exe' 'circumvents a >technological measure' as well, if you compress a copyrighted work. So >this 'circumvention' is indeed very factoid, it's result of the above >definition. DeCSS does decrypt the VOB files, so according to >1201(a)(3)(A) definition it 'circumvents a technological measure'. No >matter how ridiculous this is. > >the real meat IMHO (IANAL) is in 1201(a)(3)(B): > > o (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. > >because DVD-CCS does not meet this definition, as demonstrated by the >LiViD player and beaten to death already. > >now, per 1201, it is *NOT* unlawful to 'circumvent a technological >measure'. It's not illegal to run unzip.exe on a file for example. What is >illegal is defined in 1201(a)(1)(A): > > o (A) No person shall circumvent a technological measure > that effectively controls access to a work protected > under this title. > >And because CCS is not 'technological measure that effectively controls >access to a work protected under this title', the law does not apply to >DeCSS. Q.E.D. IMHO. > >so to repeat: > > DeCSS *does* 'circumvent' in 1201-sense > but CSS is *not* an effective measure in 1201-sense > > Ingo --- 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 Jul 29 16:44:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA15740 for dvd-discuss-outgoing; Sat, 29 Jul 2000 16:44:51 -0400 Received: from mta5.snfc21.pbi.net (mta5.snfc21.pbi.net [206.13.28.241]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id QAA15737 for ; Sat, 29 Jul 2000 16:44:50 -0400 Received: from photon ([63.195.90.12]) by mta5.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYH00AQS8806K@mta5.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sat, 29 Jul 2000 13:43:12 -0700 (PDT) Date: Sat, 29 Jul 2000 14:06:48 -0700 From: Paul Hsieh Subject: [dvd-discuss] Some thoughts. To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYH00AQT8806K@mta5.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 1) Prof. David Touretzky's testimony was monumental, but it left one hole that I see. If the MPAA hires a sufficiently skilled hacker, they will learn that DeCSS itself is exceedingly hard to reverse engineer. Reviewing the facts of the case will reveal why: Jan Johansen used a very tough scrambling system on DeCSS itself as a means of not revealing the XING player keys (otherwise their player keys would be revoked which would make further work on LiViD, and DeCSS in general more difficult.) This is a problem, because this will allow them to at least attempt to draw a line between what is truly free speech (source code, and equivalents as described by prof. Touretzky) and what is, for all practical purposes, just a device (DeCSS.exe.) So I think that that it is possible that Kaplan may see this and decide that DeCSS.exe (including links to it) are illegal, however links to css-auth are not. As far as I am concerned this could be solved in two ways: (1) We need to get the real source to DeCSS revealed, or we need to break the scrambler that shrouds it. (2) We can simply build a new DeCSS from the existing sources in the LiViD archive. Either way, we may be in a tough spot with respect to the actually existing DeCSS binary. 2) The internet bandwidth arguements we made can hardly have been convincing to Judge Kaplan. We need to explain that Internet 2 (and related technologies) will not be available to end users for quite some time for a couple reasons: (A) It is currently a closed system, and every piece of it must be rebuilt from the ground up. (B) There is no application that exists that requires the kinds of bandwidth it delivers that wouldn't have stiff competition with the existing broadband technology. The only differentiating application is potentially the piracy of DVD movies (and university research) which won't make anyone money. The point is that by the time internet, and home user bandwidth becomes capable of being able to swap DiVX's with the same speed of MP3 swapping, it is likely that a new video format will become available which obsolete's DVD itself. It should be pointed out that the plantiff's best demonstrations of this theoretical growth in bandwidth were purely theoretical. No hard figures of any real world example of data transfers of Internet 2 (or communications over power lines or anything of the sort) were given. 3) The DVD format can scale up to a degree far greater than the Judge potentially might have seen in the court demonstrations. As HDTV becomes more common place the difference between what a DVD can show and what DiVX can show would be far more pronounced. 4) At one point the Judge asked a question about "Fractile compression". He was, of course, referring to fractal compression. However, further research into fractal compression reveals that its not what it has been advertised to be. The theory is that it could lead to compression ratios of 10000:1, however (1) This is for still images and does not translate to movie images. (2) The most recent results show that practical results are more like 10:1 which is not much different than JPEG. (3) There have been results that show some forms of the process of compression to be an NP-complete problem (which basically means that its unfathomably computationally intensive -- age of the universe kind of stuff.) (4) The main proponent of fractal compression (Iterated Systems) has changed the focus of their company away from consumer usable image compression as a result of these findings. 5) The recent surprising results from SIGGRAPH 2000 about "geometry compression" must be viewed with the same skepticism as fractal compression. The field of 2D image => 3D geometry conversion is quite new and may present similar computational problems to fractal compression. -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 17:05:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA15913 for dvd-discuss-outgoing; Sat, 29 Jul 2000 17:05:07 -0400 Received: from smtp-out2.bellatlantic.net (smtp-out2.bellatlantic.net [199.45.39.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA15910 for ; Sat, 29 Jul 2000 17:05:05 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out2.bellatlantic.net (8.9.1/8.9.1) with SMTP id RAA19008 for ; Sat, 29 Jul 2000 17:04:37 -0400 (EDT) Message-Id: <4.1.20000729115408.02190688@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 29 Jul 2000 17:06:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: <20000728143020.L711@localhost> References: <200007281816.OAA29780@soggy-fibers.ai.mit.edu> <20000728112828.F711@localhost> <200007281816.OAA29780@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 02:30 PM 07/28/2000 -0600, Paul Fenimore wrote: >It is very interesting that you mention the case of permission bits >in a file system in connection with access controls. This is one of >the cases I considered in trying to do my bit in understand access >controls. My conclusion at the time was that, at least from the >perspective of cryptography, permission bits are obscurity, not security. >Permission bits do not prevent other people from reading a file. >Permission bit invoke bits of code in the operating system, and those >bits of code prevent people from reading the files. Change the instance >of the operating system in question, and one might read the files. Right. Permission bits work only when the content purveyor also controls all reader devices (see RealNetworks v. Streambox, where Real was given that control for streaming media), i.e. only when there's a player mandate (as Robert's legislative history shows was rejected). So you could say CSS works to enable an over-complicated permission bit (over-complicated because it's always set to "no permission"), if the DVDCCA gives the decryption algorithm only to those players who agree to abide by its permissions. Or, to revive an old thread, its licensing scheme denies interoperability to those who won't play by MPAA's rules of limited operability. The model doesn't work to prevent copying (though it's ideal as a copyright notice indicating that copying is not desired) unless you deny people the right to modify or develop their own reader devices. At this point, Stallman's "Right to Read" (1996) looks chillingly prescient . --- 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 Jul 29 17:32:23 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16217 for dvd-discuss-outgoing; Sat, 29 Jul 2000 17:32:23 -0400 Received: from hotmail.com (f88.law9.hotmail.com [64.4.9.88]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id RAA16214 for ; Sat, 29 Jul 2000 17:32:22 -0400 Received: (qmail 27554 invoked by uid 0); 29 Jul 2000 21:31:26 -0000 Message-ID: <20000729213126.27553.qmail@hotmail.com> Received: from 209.206.25.189 by www.hotmail.com with HTTP; Sat, 29 Jul 2000 14:31:26 PDT X-Originating-IP: [209.206.25.189] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access Date: Sat, 29 Jul 2000 17:31:26 EDT 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 read Ingo's piece about DeCSS circumventing, and I was almost persuaded. I read the statute language several times, and came up with an interesting insight. It is possible to have the interpretation that CSS IS an effective access control, but that DeCSS does not circumvent. It's all in the authority model. There actually is a circumstance where CSS will deny access: If you use windows to copy the VOB files onto a writable DVD! You can't copy the keys (using readily available media and writers anyway), so CSS equiped players won't play discs copied in this manner. Neither will DeCSS! In this case, the authority comes with writing the disc key on the disc. Thus the physical possession of the (manufacturer's) disc grants the key and this is THE authority grant. In this case, DeCSS decrypts WITH the authority of the copyright holders (even though they don't want to admit it). DeCSS does not then circumvent. I'm not saying that this is THE correct interpretation, but it is a workable one - it also has the copyright holder granting authority, not the DVD-CCA, which makes sense too. One potential danger is that it has been suggested that LiViD would play such a copied disk, so it could be in trouble with this interpretation (except that it obviously has commercial value beyond circumvention). I think that Wendy's arguments were fairly persuasive too, but IANAL. The more I read the statute, the more I'd like to see an outcome where it is found unconstitutional. I think that Robert's paper could make use of this idea and perhaps have an either/or type argument. Either CSS effectively controls access but then DeCSS has authority, or CSS doesn't effectively control acess, in which case circumventing it is irrelevant. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 17:40:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA16335 for dvd-discuss-outgoing; Sat, 29 Jul 2000 17:40:17 -0400 Received: from smtp-out2.bellatlantic.net (smtp-out2.bellatlantic.net [199.45.39.157]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA16332 for ; Sat, 29 Jul 2000 17:40:16 -0400 Received: from banquo (adsl-151-202-34-10.bellatlantic.net [151.202.34.10]) by smtp-out2.bellatlantic.net (8.9.1/8.9.1) with SMTP id RAA04062 for ; Sat, 29 Jul 2000 17:39:49 -0400 (EDT) Message-Id: <4.1.20000729115150.03136f00@law.harvard.edu> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.1 Date: Sat, 29 Jul 2000 17:21:58 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <4.3.2.7.2.20000728113402.04ae8590@127.0.0.1> References: <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.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 At 11:37 AM 07/28/2000 -0700, James S. Tyre wrote: >I am hoping that John Young's sneaker-net is scurrying about as I type, >trying to get ahold of the docs so that we can find out what the hell this >is all about. I can think of a number of reasons why DVD-CCA wants to >intervene (they've only asked to, they haven't yet been granted permission >to do so) and how those reasons might backfire, but it's really all >speculation until we know the details. I don't presume to be John Young, but I think the DVDCCA was asking to intervene on the question of keeping their licenses under seal. Defendants put about 12 of the license documents in evidence, and several extra heads popped up in the gallery during the discussion of whether those would be accepted under seal. It will be interesting to see whether in making that motion, they attempt to add other points as well. --Wendy (since it's the only part of the trial I saw...) --- 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 Jul 29 18:08:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16518 for dvd-discuss-outgoing; Sat, 29 Jul 2000 18:08:07 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16515 for ; Sat, 29 Jul 2000 18:08:05 -0400 Received: from ppp.anonymizer.com (c02-044.015.popsite.net [64.24.73.44]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id PAA25508; Sat, 29 Jul 2000 15:09:51 -0700 (PDT) Message-Id: <4.3.2.7.2.20000729150459.04aa68f0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 29 Jul 2000 15:08:51 -0700 To: dvd-discuss@eon.law.harvard.edu, dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <4.1.20000729115150.03136f00@law.harvard.edu> References: <4.3.2.7.2.20000728113402.04ae8590@127.0.0.1> <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.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 05:21 PM 7/29/2000 -0400, Wendy Seltzer wrote: >I don't presume to be John Young No worries on that front. ;-) Leaving aside age, gender and other such mundane matters, it is an irrefutable fact that John is sui generis. -------------------------------------------------------------------- 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 Jul 29 18:44:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA16908 for dvd-discuss-outgoing; Sat, 29 Jul 2000 18:44:13 -0400 Received: from chmls05.mediaone.net (chmls05.mediaone.net [24.147.1.143]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id SAA16905 for ; Sat, 29 Jul 2000 18:44:12 -0400 Received: from mit.edu (h0050da62b39d.ne.mediaone.net [24.147.219.153]) by chmls05.mediaone.net (8.8.7/8.8.7) with ESMTP id SAA10809; Sat, 29 Jul 2000 18:43:47 -0400 (EDT) Message-ID: <39835E75.B48C1EE9@mit.edu> Date: Sat, 29 Jul 2000 18:45:09 -0400 From: Ravi Nanavati X-Mailer: Mozilla 4.73 [en] (X11; U; Linux 2.2.14-5.0 i686) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Pretextual References: <20000729010138.9183.qmail@web509.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: > > --- Paul Fenimore wrote: > > To satisfy the "requires" test in (a)(3) (I think Robert Thau is a > > supporter and originator of this view), the cryptography cannot > > be pretextual, the keys have to be different from one another and > > "random-looking". > > Forgive my ignorance. What does 'pretextual' mean? I've seen this term > of art used by several folks here, but I don't understand what the > definition and implications are. Is there a statue or precedent that > relates to this? > I'm not one of the people using "pretextual" here, so my interpretation may not be accurate, but... What I get out of the phrase "the encryption is pretextual" is that the encryption serves no purpose on its own. The only reason it exists is so that it can be used as a pretext for doing other things (in this case, controlling the player market). The other place I've seen the word "pretextual" used is in the case of "pretextual traffic stops". This is when a police officer ostensibly stops a motorist because they might have been speeding or running a red light (or some other minor traffic violation) when what the officer is really interested in is are they carrying drugs, are they the serial killer they're looking for, and so on. The stop is just a pretext that allows the officer to indulge their suspicions. - Ravi Nanavati From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 18:58:07 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id SAA17384 for dvd-discuss-outgoing; Sat, 29 Jul 2000 18:58:07 -0400 Received: from hotmail.com (f259.law9.hotmail.com [64.4.8.134]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id SAA17380 for ; Sat, 29 Jul 2000 18:58:05 -0400 Received: (qmail 56347 invoked by uid 0); 29 Jul 2000 22:57:28 -0000 Message-ID: <20000729225728.56346.qmail@hotmail.com> Received: from 209.206.25.189 by www.hotmail.com with HTTP; Sat, 29 Jul 2000 15:57:28 PDT X-Originating-IP: [209.206.25.189] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Recusal thought Date: Sat, 29 Jul 2000 18:57:28 EDT 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 was just reading the Judges denial of recusal, and I came across something interesting: "Defendants’ document demands in this case were extremely broad. They have sought,for example, all documents relating to copying of DVDs(without limitation on means of copying) anywhere in the world,..." And he sites his motion to deny a stay of the trial regarding this. It is clear that this is intended to convey that defendants couldn't possibly need such information... and then, in the trial, HE brings up Summers v. Tice, suggesting that the burden of proof that DeCSS has not led to any infringing copies rests on the defendant! IANAL, but on appeal this might be useful evidence of bias against the defendants. ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 19:15:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17727 for dvd-discuss-outgoing; Sat, 29 Jul 2000 19:15:54 -0400 Received: from mail.virtualrecordings.com ([209.0.104.81]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17724 for ; Sat, 29 Jul 2000 19:15:52 -0400 Received: from eff.org [209.0.105.216] by mail.virtualrecordings.com with ESMTP (SMTPD32-6.00) id A538DA63014C; Sat, 29 Jul 2000 16:14:00 -0700 Message-ID: <39836508.12A3456C@eff.org> Date: Sat, 29 Jul 2000 16:13:13 -0700 From: Robin Gross Organization: Electronic Frontier Foundation X-Mailer: Mozilla 4.72 [en] (Win95; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) References: <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.mail.yahoo.com> <4.1.20000729115150.03136f00@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 Yes. DVD-CCA has moved to intervene in the case since we filed an application to lift the court's seal on the Xing CSS license. They *really* don't want people to see this license. Best, Robin Wendy Seltzer wrote: > > At 11:37 AM 07/28/2000 -0700, James S. Tyre wrote: > >I am hoping that John Young's sneaker-net is scurrying about as I type, > >trying to get ahold of the docs so that we can find out what the hell this > >is all about. I can think of a number of reasons why DVD-CCA wants to > >intervene (they've only asked to, they haven't yet been granted permission > >to do so) and how those reasons might backfire, but it's really all > >speculation until we know the details. > > I don't presume to be John Young, but I think the DVDCCA was asking to > intervene on the question of keeping their licenses under seal. Defendants > put about 12 of the license documents in evidence, and several extra heads > popped up in the gallery during the discussion of whether those would be > accepted under seal. > > It will be interesting to see whether in making that motion, they attempt > to add other points as well. > > --Wendy > (since it's the only part of the trial I saw...) > --- > Wendy Seltzer > wendy@seltzer.com > Fellow, Berkman Center for Internet & Society at Harvard Law School > http://cyber.law.harvard.edu/seltzer.html -- ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Robin D. Gross - Cyberspace Attorney @ Law Electronic Frontier Foundation 1550 Bryant Street, Suite 725, San Francisco, CA 94103 t: 415.436.9333 (x107) f: 415.436.9993 e: robin@eff.org w: http://www.eff.org RDG direct line: 415.863.5459 direct fax: 415.863.7154 EFF's Campaign for Audiovisual Free Expression: http://www.eff.org/cafe http://www.eff.org/pub/Intellectual_property/DVDCCA_case ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 19:33:41 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA17989 for dvd-discuss-outgoing; Sat, 29 Jul 2000 19:33:41 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA17986 for ; Sat, 29 Jul 2000 19:33:26 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id TAA17686 for dvd-discuss@eon.law.harvard.edu; Sat, 29 Jul 2000 19:37:04 -0400 Date: Sat, 29 Jul 2000 19:36:59 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access Message-ID: <20000729193659.A17495@eldritchpress.org> References: <20000729213126.27553.qmail@hotmail.com> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000729213126.27553.qmail@hotmail.com>; from haceaton@hotmail.com on Sat, Jul 29, 2000 at 05:31:26PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 29, 2000 at 05:31:26PM -0400, Harold Eaton wrote: >... > I think that Wendy's arguments were fairly persuasive too, but IANAL. The > more I read the statute, the more I'd like to see an outcome where it is > found unconstitutional. I think that Robert's paper could make use of this > idea and perhaps have an either/or type argument. Either CSS effectively > controls access but then DeCSS has authority, or CSS doesn't effectively > control acess, in which case circumventing it is irrelevant. Yes. I'd just like to see (1) Corley found not guilty; and (2) DMCA thrown out so they can't bring a suit against LiViD. It's not entirely necessary, I think, to have DMCA found unconstitutional. That is one reason to throw it out. But there might be others, for example that the statute is internally inconsistent and contradictory, and that any reasonable interpretation cannot be made of it. As far as (1) goes, I think what we should do is in my earlier outline. Posit two interpretations of 1201 and then show that in neither case can DeCSS be illegal and in neither case can the statute stand. We can make every attempt to interpret the strong part of 1201 as the plaintiffs wish, and then show that the way CSS and DeCSS works is not at all what they describe, and that even if the strong interpretation of 1201 holds, DeCSS is still okay. Then, turning to the weak interpretation, we can show that DeCSS would be allowed under all the exceptions and constitutional grounds. But DMCA still has to be thrown out because the important strong parts of it are still contradictory, even with the most favorable interpretation, and certainly given the constitutional questions. This is really a melding of Samuelson and the separate papers by Bryan and Robert. Your points above, citing authority and circumvention as inconsistent and contradictory, are integral. I think it can be done but I put it forward for discussion. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 19:44:08 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18102 for dvd-discuss-outgoing; Sat, 29 Jul 2000 19:44:08 -0400 Received: from cyberpass.net (cyberpass.net [216.34.245.3]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18099 for ; Sat, 29 Jul 2000 19:44:06 -0400 Received: from ppp.anonymizer.com (c02-044.015.popsite.net [64.24.73.44]) by cyberpass.net (8.8.8/8.7.3) with ESMTP id QAA25922 for ; Sat, 29 Jul 2000 16:45:49 -0700 (PDT) Message-Id: <4.3.2.7.2.20000729164216.00a906c0@127.0.0.1> X-Sender: j.s.tyre/cyberpass.net@127.0.0.1 X-Mailer: QUALCOMM Windows Eudora Version 4.3.2 Date: Sat, 29 Jul 2000 16:44:49 -0700 To: dvd-discuss@eon.law.harvard.edu From: "James S. Tyre" Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <39836508.12A3456C@eff.org> References: <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.mail.yahoo.com> <4.1.20000729115150.03136f00@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 04:13 PM 7/29/2000 -0700, Robin Gross wrote: >Yes. DVD-CCA has moved to intervene in the case since we filed an >application to lift the court's seal on the Xing CSS license. They >*really* don't want people to see this license. > >Best, >Robin There's no doubt that my memory can be faulty, but I *think* that it's been posted somewhere in the Web Wide World already. Can anyone verify - or tell me I'm full of it? ;-) -------------------------------------------------------------------- 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 Jul 29 19:51:04 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18185 for dvd-discuss-outgoing; Sat, 29 Jul 2000 19:51:04 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id TAA18182 for ; Sat, 29 Jul 2000 19:51:03 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id SAA04153 for ; Sat, 29 Jul 2000 18:50:15 -0500 Message-ID: <39836DA7.AEE7222F@mninter.net> Date: Sat, 29 Jul 2000 18:49:59 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) References: <20000728145802.M711@localhost> <4.1.20000729152046.01a3c5b0@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: > Where the copyright owner has no right to control (a use of) his > work, such that no "authority" is necessary to make that use of it, > the house of cards topples and there is no circumvention. Fair use > is not a defense to circumvention only if and because its guarantee > is already built into the definition of circumvention. I like this. It's convincing. If I read you right, fair use is a defense to an accusation of circumvention because if a use is judged fair use the copyright holder has no authority to withhold. At first, though, it seems a little problematic: what about Pay Per View satellite? If I hack the dish to get a free movie for purposes of creating a thesis or writing a review, could that be judged fair use? Maybe not. What we have is the debate again about whether of not we have the right to "break the locks" to the distributor's warehouse to make fair use. We know the position of the studios. In the end, a fifth balancing factor may be necessary to determine fair use using this idea-the publication quotient. How published is the work? A book, for example is 100% published: you bought it, you own it. A dvd might be 90% published: you bought the disk and have a reasonable expectation to use it, but it's still behind a TPM. Satellite pay per view is 0% published until you pay for it, then it is 100% published. Or something. So anything distributed with a non-absolute publication quotient (most material "published" with a TPM) needs to balance that fact with the other fair-use factors. This reminds me a bit of the fractional dimensions of fractals I heard a bit about in high school. The idea of publication, we all know, will change with the DMCA, and it moving from a binary idea to a continuum isn't that far a leap. I just woke up from a nap, though, so maybe this is all nonsense. From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 19:56:58 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA18343 for dvd-discuss-outgoing; Sat, 29 Jul 2000 19:56:58 -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 TAA18340 for ; Sat, 29 Jul 2000 19:56:57 -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:2.21) with ESMTP id TAA14597 for ; Sat, 29 Jul 2000 19:56:32 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id TAA03364; Sat, 29 Jul 2000 19:56:30 -0400 (EDT) Date: Sat, 29 Jul 2000 19:56:30 -0400 (EDT) Message-Id: <200007292356.TAA03364@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) In-Reply-To: <4.1.20000729152046.01a3c5b0@law.harvard.edu> References: <20000728145802.M711@localhost> <4.1.20000729152046.01a3c5b0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > 1201(a)(2) bans trafficking in devices to " measure [see (a)(3)(A)]> that effectively controls access to a work [see > (a)(3)(B)]>> protected under this title." > > The way I read it, the definitions overlap as I've tried to indicate with > the <>s above, so "circumvention" imports "technological measure that > effectively controls access," which in turn imports the "with the authority > of the copyright owner" language that's given us so much trouble. Very minor correction: the 1201(a)(3)(A) definition of circumvention invokes "authority of the copyright owner" directly, no cross-reference required. Not that it matters much... as you point out, the law explicitly says that the offense is "circumvention of " --- if no such technological measure exists, then it seems to me that a necessary statutory element of the crime (or civil offense, or whatever it is) is just missing. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 20:03:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18399 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:03:45 -0400 Received: from blount.mail.mindspring.net (blount.mail.mindspring.net [207.69.200.226]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA18396 for ; Sat, 29 Jul 2000 20:03:43 -0400 Received: from jy01 (user-2iniii7.dialup.mindspring.com [165.121.74.71]) by blount.mail.mindspring.net (8.9.3/8.8.5) with SMTP id UAA12805 for ; Sat, 29 Jul 2000 20:03:16 -0400 (EDT) Message-Id: <200007300003.UAA12805@blount.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sat, 29 Jul 2000 19:57:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <4.3.2.7.2.20000729164216.00a906c0@127.0.0.1> References: <39836508.12A3456C@eff.org> <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.mail.yahoo.com> <4.1.20000729115150.03136f00@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 >Can anyone verify - or tell me I'm full of it? ;-) Not sure about the Xing agreement, but what was posted was a redacted copy of the CSS Interim License Agreeemnt, filed in the California case, and I think intended to be sealed, and may have later been, but California procedures are not a little so what who cares lets boogie praise jesus burn baby, undale pronto, meaning whatever the intentions were they are not what they seem, for now the doc is sealed though globally available, meaning lawyers cannot look at it or risk going blind like justice. Robin turned a blind eye a lot during trial, every time the lady upfront yelled All Right! and the mob hip-hopped arm pump. Macki hexed the court, so that end of trial all hair was hued unnatural. > >-------------------------------------------------------------------- >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 Jul 29 20:08:17 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18495 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:08:17 -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 UAA18492 for ; Sat, 29 Jul 2000 20:08:17 -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 UAA23966 for ; Sat, 29 Jul 2000 20:07:50 -0400 (EDT) Message-Id: <4.2.2.20000729194913.022b95b0@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sat, 29 Jul 2000 20:07:41 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <4.3.2.7.2.20000729164216.00a906c0@127.0.0.1> References: <39836508.12A3456C@eff.org> <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.mail.yahoo.com> <4.1.20000729115150.03136f00@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 04:44 PM 7/29/00 -0700, James S. Tyre wrote: >At 04:13 PM 7/29/2000 -0700, Robin Gross wrote: >>Yes. DVD-CCA has moved to intervene in the case since we filed an >>application to lift the court's seal on the Xing CSS license. They >>*really* don't want people to see this license. >> >>Best, >>Robin > >There's no doubt that my memory can be faulty, but I *think* that it's >been posted somewhere in the Web Wide World already. Can anyone verify - >or tell me I'm full of it? ;-) The best I've seen is the "CSS Interim License Agreement," which John Hoy attached to his declaration in Santa Clara (along with the DeCSS code, and only later tried to seal the whole thing). Note his acknowledgment that that license doesn't give the whole of the conditions on licensees: "[Footnote 3 to Hoy Declaration] For reasons of confidentiality, the names of all companies mentioned in the Agreement have been redacted. Additionally, the CSS Agreement consists of both the CSS License Agreement and an agreement pertaining to specifications for the CSS technology. Because the latter agreement contains highly confidential proprietary information that is not at issue in this lawsuit, it is not attached." I'd sure like to see what's really in there... and then to see where on the disc it informs the consumer that only a manufacturer who's agreed to this pile of legal jargon can offer him a player to view the movie he's just bought. --Wendy (If I can't be John Young, at least I can mirror cryptome files as we await its return) 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 Jul 29 20:13:06 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18547 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:13:06 -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 UAA18544 for ; Sat, 29 Jul 2000 20:13:05 -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:2.21) with ESMTP id UAA15465 for ; Sat, 29 Jul 2000 20:12:40 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA03378; Sat, 29 Jul 2000 20:12:38 -0400 (EDT) Date: Sat, 29 Jul 2000 20:12:38 -0400 (EDT) Message-Id: <200007300012.UAA03378@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] create a DVD that stores an email in digital form? In-Reply-To: <4.1.20000729115408.02190688@law.harvard.edu> References: <200007281816.OAA29780@soggy-fibers.ai.mit.edu> <20000728112828.F711@localhost> <20000728143020.L711@localhost> <4.1.20000729115408.02190688@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 02:30 PM 07/28/2000 -0600, Paul Fenimore wrote: > >It is very interesting that you mention the case of permission bits > >in a file system in connection with access controls. This is one of > >the cases I considered in trying to do my bit in understand access > >controls. My conclusion at the time was that, at least from the > >perspective of cryptography, permission bits are obscurity, not security. > >Permission bits do not prevent other people from reading a file. > >Permission bit invoke bits of code in the operating system, and those > >bits of code prevent people from reading the files. Change the instance > >of the operating system in question, and one might read the files. Hmmm... this strikes me as a bit extreme. I'd say that they are a TPM with limited scope --- they guard against attackers without the wherewithal to replace the operating system, which is not a trivial thing --- it may require rebooting the machine, requiring perhaps physical access and knowledge of a BIOS password, etc. And anyone who can replace the operating system probably also has physical access to the disk drives, and could take them out of the box and read the media directly. Computer security gurus tend not to think of a system as "secure" or "insecure", as if it was a binary choice; they think instead of the cost required for an attacker with particular resources to subvert it (presuming the attacker knows everything about the security measures themselves except perhaps some passwords or keys, to keep obscurity from passing muster). Permission bits do raise the bar. > Right. Permission bits work only when the content purveyor also controls > all reader devices (see RealNetworks v. Streambox, where Real was given > that control for streaming media), i.e. only when there's a player mandate > (as Robert's legislative history shows was rejected). Also, the permissions in some network file systems do constitute a genuine TPM even under Paul's standard --- you can't get a file off any file server on MIT's Athena network, for instance, without presenting strong evidence of your identity (a Kerberos ticket which is only issued upon presentation of your password, to oversimplify somewhat). These mechanisms of course rely on the attacker not having physical access to the disk drives containing the files. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 20:21:51 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA18996 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:21:51 -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 UAA18993 for ; Sat, 29 Jul 2000 20:21:50 -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:2.21) with ESMTP id UAA15978 for ; Sat, 29 Jul 2000 20:21:25 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA03383; Sat, 29 Jul 2000 20:21:24 -0400 (EDT) Date: Sat, 29 Jul 2000 20:21:24 -0400 (EDT) Message-Id: <200007300021.UAA03383@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) In-Reply-To: <4.3.2.7.2.20000729164216.00a906c0@127.0.0.1> References: <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <4.1.20000729115150.03136f00@law.harvard.edu> <39836508.12A3456C@eff.org> <4.3.2.7.2.20000729164216.00a906c0@127.0.0.1> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu James S. Tyre writes: > At 04:13 PM 7/29/2000 -0700, Robin Gross wrote: > >Yes. DVD-CCA has moved to intervene in the case since we filed an > >application to lift the court's seal on the Xing CSS license. They > >*really* don't want people to see this license. > > There's no doubt that my memory can be faulty, but I *think* that it's been > posted somewhere in the Web Wide World already. Can anyone verify - or > tell me I'm full of it? ;-) Hmmm... the *end-user* license agreement for the Xing player was posted in the EFF's archives as an exhibit from the California trade-secret case, and we've often quoted its particularly explicit disclaimer that the license grants no authority at all to view any DVDs. But Xing's own license from the DVD-CCA is another thing entirely; it doesn't seem to be in the exhibits of the California case, and I can't recall seeing it anywhere else. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 20:32:34 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19138 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:32:34 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA19135 for ; Sat, 29 Jul 2000 20:32:31 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id TAA06295 for ; Sat, 29 Jul 2000 19:31:44 -0500 Message-ID: <39837759.313D2520@mninter.net> Date: Sat, 29 Jul 2000 19:31:21 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access References: <20000729213126.27553.qmail@hotmail.com> Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu -----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1 Harold Eaton wrote: > It is possible to have the interpretation that CSS IS an > effective access control, but that DeCSS does not circumvent. It's > all in the authority model. Agreed. I know this has been broached many times before, but let me see if I can make a definitive case for the "implementation, not circumvention" argument. Corley is charged with trafficking in a device that is primarily designed to circumvent access control or has limited commercial significance or use besides circumvention. Any device that gains access to a work without the authority of the copyright holder circumvents. In every instance DeCSS provides access, the Xing player provides access and vice versa. The purpose of DeCSS, as demonstrated in court, is to be a CSS implementation. It was reverse engineered from a CSS implementation to act as a CSS-compliant mechanism. The keys that CSS uses to determine authorization come with the DVD and DeCSS, along with every CSS implementation, uses those keys to access the work. Thus, under the plaintiff's ill-defined post hoc idea of authorization, every CSS implementation could be brought up on 1201 circumvention device charges. However, this is inconsistent with legislative intent--implementations inherently do not circumvent. Independent implementations are protected by the reverse engineering portion of 1201, and were defended in the conference committee report. Implementations may be protected by other means, patents for example, but woe betide the copyright holder that uses a patented TPM. Instead, because DeCSS acts just like a DVD player's implementation of CSS, it should be immune to 1201 circumvention device accusations. It is an implementation, a purpose apart from a device intended for circumvention. As a CSS implementation it does what it is supposed to do, when it is supposed to do it. I hope this was a little more thorough than I have been. I think that this is the only appropriate judgment. Ruling that DeCSS circumvents grants the studios an unlimited monopoly in the implementation of the CSS TPM with the full support of the federal government. Unconstitutional, Unconscionable and Despicable. "Implementation" should be a defense to every charge of circumvention. The burden of proof should be on the plaintiffs, and remedies besides banning the device are available that do not restrain speech (such as ruling the device does not comply, but that a repaired device is a-ok). Hopefully this is my last little outburst on this topic. I just don't remember seeing it thoroughly treated. - -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp -----BEGIN PGP SIGNATURE----- Version: PGPfreeware 6.5.3 for non-commercial use iQA/AwUBOYN3VDik9YADgV7kEQJZDwCfSfijy2w72TY9bekd58LinlhzhvgAoJvl HBQcOmvvMCHiyhAfKbI6OfBM =Crjl -----END PGP SIGNATURE----- From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 20:35:05 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19221 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:35:05 -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 UAA19218 for ; Sat, 29 Jul 2000 20:35:05 -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:2.21) with ESMTP id UAA16654 for ; Sat, 29 Jul 2000 20:34:39 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id UAA03441; Sat, 29 Jul 2000 20:34:38 -0400 (EDT) Date: Sat, 29 Jul 2000 20:34:38 -0400 (EDT) Message-Id: <200007300034.UAA03441@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) In-Reply-To: <4.1.20000729152046.01a3c5b0@law.harvard.edu> References: <20000728145802.M711@localhost> <4.1.20000729152046.01a3c5b0@law.harvard.edu> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer writes: > Where the copyright owner has no right to control (a use of) his work, such > that no "authority" is necessary to make that use of it, the house of cards > topples and there is no circumvention. Fair use is not a defense to > circumvention only if and because its guarantee is already built into the > definition of circumvention. Bryan's essay makes a very similar argument: he invokes the first sale doctrine, which states that all rights not specifically codified in 17 USC 106 are transferred when the DVD is sold, and infers that all *other* rights, including the right to authorize private viewing, are necessarily among those surrendered at sale. So, on this model (the "consumer's authorization model", as Bryan calls it), when you've bought a copy of a published work, you don't have to go to the copyright owner anymore to authorize access; you have acquired the right to authorize yourself. (Bryan, I hope I got that right). If that argument works, of course, then access control over a published work really doesn't make a whole lot of sense, except if it works to discriminate between people who have paid for a copy and people who haven't. rst From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 20:58:14 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA19339 for dvd-discuss-outgoing; Sat, 29 Jul 2000 20:58:14 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id UAA19336 for ; Sat, 29 Jul 2000 20:58:12 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id RAA04330 for ; Sat, 29 Jul 2000 17:57:39 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Intercepting video Date: Sat, 29 Jul 2000 17:57:39 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar, on Saturday, July 29, 2000 2:19 AM, wrote >the reason is that they simply cannot forbid people reading memory, and >it's simply impossible to prevent digital content from being intercepted >in one way or another. True, but there are many ways to make it difficult to intercept. (And of course a big part of CSS is to encrypt it so that intercepting without keys does you no good.) >You can get at any memory page in any program in >Windows as well (start up a debugger) - in some OSs it's more obvious, in >some OSs it's less obvious, but it's possible in every x86-class system. First, CSS-licensed DVD software players are required to prevent debugging. Second, most decryption nowadays takes place largely in the graphics hardware, where you have no access. Third, decrypted video is usually send to hardware overlay memory via VPE, where you can't get to it. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 21:46:03 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id VAA20863 for dvd-discuss-outgoing; Sat, 29 Jul 2000 21:46:03 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id VAA20860 for ; Sat, 29 Jul 2000 21:46:01 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id SAA12731 for ; Sat, 29 Jul 2000 18:45:35 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? Date: Sat, 29 Jul 2000 18:45:34 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Ingo Molnar, on Saturday, July 29, 2000 2:14 AM, wrote >i believe your analogy is wrong. The right analogy is: 'if i write a >letter, then put it into an envelope i purchased, send the envelope to a >friend, but the recipient cannot open it, because the envelope-producing >company insists that "opening the envelope" must only be done in an >authorized way, and the letter can be only read from 100 yards distance. >While this might work if you write 10 yards big letters, but it's an >unreasonable restraint on the recipient's ability to read the letter.' No it's not. You chose to use the restrictive envelope. Who says the recipient has a right to be able to easily read it? You wrote the letter, so you have the right to restrict reading. This is the MPAA's point-- they own the copyright, so they can restrict access. If someone wants to get DMCA thrown out, then they have to argue that copyright law doesn't grant such restrictive uh... restrictions. >i believe that the whole MPAA argument relies on the fact that it's *only* >the MPAA who own copyrights within encrypted DVDs. If we could produce >CSS-encrypted DVDs that are playable via LiViD, then i believe the MPAA's >argument becomes vulnerable: who the hell is the MPAA to restrict *my* >copyright? If you sign a CSS license you can produce a CSS-encrypted DVD. Or if you reverse-engineer the CSS encoding algorithm and generate some title keys you could produce a CSS-encrypted DVD without a license. But in either case *you* have chosen to restrict your copyright, not the MPAA. Your producing a disc makes no difference to their argument. You could also make non-CSSed disc that you could play with LiViD. You still haven't proven anything. -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 23:19:13 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22519 for dvd-discuss-outgoing; Sat, 29 Jul 2000 23:19:13 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22516 for ; Sat, 29 Jul 2000 23:19:02 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA17855 for dvd-discuss@eon.law.harvard.edu; Sat, 29 Jul 2000 23:22:42 -0400 Date: Sat, 29 Jul 2000 23:22:37 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access Message-ID: <20000729232237.B17712@eldritchpress.org> References: <20000729213126.27553.qmail@hotmail.com> <39837759.313D2520@mninter.net> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <39837759.313D2520@mninter.net>; from moseng@mninter.net on Sat, Jul 29, 2000 at 07:31:21PM -0500 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 29, 2000 at 07:31:21PM -0500, Chris Moseng wrote: > > Harold Eaton wrote: > > > It is possible to have the interpretation that CSS IS an > > effective access control, but that DeCSS does not circumvent. It's > > all in the authority model. > > Agreed. > In every instance DeCSS provides access, the Xing player provides access > and vice versa. The purpose of DeCSS, as demonstrated in court, is to be > a CSS implementation. It was reverse engineered from a CSS > implementation to act as a CSS-compliant mechanism. The keys that CSS > uses to determine authorization come with the DVD and DeCSS, along with > every CSS implementation, uses those keys to access the work. > Thus, under the plaintiff's ill-defined post hoc idea of authorization, > every CSS implementation could be brought up on 1201 circumvention > device charges. If the Xing player keys were revoked, would its implementation be "authorized" any longer? If not, would it be "circumventing"? But wasn't the player authorized at time of implementation? Just what is the authority model? Your idea sounds as good as any, but it is really up to plaintiff to specify. And if not, then we can use our imagination. > However, this is inconsistent with legislative > intent--implementations inherently do not circumvent. Independent > implementations are protected by the reverse engineering portion of > 1201, and were defended in the conference committee report. > Implementations may be protected by other means, patents for example, > but woe betide the copyright holder that uses a patented TPM. > > Instead, because DeCSS acts just like a DVD player's implementation of > CSS, it should be immune to 1201 circumvention device accusations. It is > an implementation, a purpose apart from a device intended for > circumvention. As a CSS implementation it does what it is supposed to > do, when it is supposed to do it. > > I hope this was a little more thorough than I have been. I think that > this is the only appropriate judgment. Ruling that DeCSS circumvents > grants the studios an unlimited monopoly in the implementation of the > CSS TPM with the full support of the federal government. > Unconstitutional, Unconscionable and Despicable. > > "Implementation" should be a defense to every charge of circumvention. > The burden of proof should be on the plaintiffs, and remedies besides > banning the device are available that do not restrain speech (such as > ruling the device does not comply, but that a repaired device is a-ok). From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 23:23:33 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22641 for dvd-discuss-outgoing; Sat, 29 Jul 2000 23:23:33 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id XAA22637 for ; Sat, 29 Jul 2000 23:23:21 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id XAA17864 for dvd-discuss@eon.law.harvard.edu; Sat, 29 Jul 2000 23:27:01 -0400 Date: Sat, 29 Jul 2000 23:26:56 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) Message-ID: <20000729232656.C17712@eldritchpress.org> References: <20000728145802.M711@localhost> <4.1.20000729152046.01a3c5b0@law.harvard.edu> <200007300034.UAA03441@soggy-fibers.ai.mit.edu> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <200007300034.UAA03441@soggy-fibers.ai.mit.edu>; from rst@ai.mit.edu on Sat, Jul 29, 2000 at 08:34:38PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sat, Jul 29, 2000 at 08:34:38PM -0400, Robert S. Thau wrote: > Wendy Seltzer writes: > > Where the copyright owner has no right to control (a use of) his work, such > > that no "authority" is necessary to make that use of it, the house of cards > > topples and there is no circumvention. Fair use is not a defense to > > circumvention only if and because its guarantee is already built into the > > definition of circumvention. > > Bryan's essay makes a very similar argument: he invokes the first sale > doctrine, which states that all rights not specifically codified in 17 > USC 106 are transferred when the DVD is sold, and infers that all > *other* rights, including the right to authorize private viewing, are > necessarily among those surrendered at sale. So, on this model (the > "consumer's authorization model", as Bryan calls it), when you've > bought a copy of a published work, you don't have to go to the > copyright owner anymore to authorize access; you have acquired the > right to authorize yourself. > > (Bryan, I hope I got that right). > > If that argument works, of course, then access control over a > published work really doesn't make a whole lot of sense, except if it > works to discriminate between people who have paid for a copy and > people who haven't. It might make sense if the "black box" that descrambles a streamed video is considered the publication, and access to it is controlled by restricting the use of that hardware to people who have paid for access. But when one purchases a DVD disc, doesn't one also get authorization to use it? (Referring back to the ambiguity of the authorization model. It seems this question didn't come up in Congress because the MPAA thought it had control over the DVD-CCA licensing enough to prevent anybody from "circumventing" and the hardware solution was supposed to be secure?) From dvd-discuss-owner@eon.law.harvard.edu Sat Jul 29 23:32:56 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id XAA22767 for dvd-discuss-outgoing; Sat, 29 Jul 2000 23:32:56 -0400 Received: from hotmail.com (f206.law9.hotmail.com [64.4.9.206]) by eon.law.harvard.edu (8.8.7/8.8.7) with SMTP id XAA22764 for ; Sat, 29 Jul 2000 23:32:55 -0400 Received: (qmail 25602 invoked by uid 0); 30 Jul 2000 03:32:00 -0000 Message-ID: <20000730033200.25601.qmail@hotmail.com> Received: from 209.206.54.234 by www.hotmail.com with HTTP; Sat, 29 Jul 2000 20:31:59 PDT X-Originating-IP: [209.206.54.234] From: "Harold Eaton" To: dvd-discuss@eon.law.harvard.edu Subject: RE: [dvd-discuss] create a DVD that stores an email in digital form? Date: Sat, 29 Jul 2000 23:31:59 EDT 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 Jim Taylor wrote: >If you sign a CSS license you can produce a CSS-encrypted DVD. Or if you >reverse-engineer the CSS encoding algorithm and generate some title keys >you >could produce a CSS-encrypted DVD without a license. But in either case >*you* have chosen to restrict your copyright, not the MPAA. Your producing >a >disc makes no difference to their argument. You could also make non-CSSed >disc that you could play with LiViD. You still haven't proven anything. > Huh? If I reverse-engineer CSS and produce a copyrighted (by me) CSS-encrypted DVD without a license, would I be permitted to license 2600 (and everybody else) to traffic in DeCSS (or any other CSS implementation they like) with my authority as a copyright holder? If not, what makes me different from Sony? Of course my license terms would be most reasonable... I wouldn't charge any fees... ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 00:07:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA23132 for dvd-discuss-outgoing; Sun, 30 Jul 2000 00:07:53 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA23128 for ; Sun, 30 Jul 2000 00:07:40 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA17898 for dvd-discuss@eon.law.harvard.edu; Sun, 30 Jul 2000 00:11:21 -0400 Date: Sun, 30 Jul 2000 00:11:15 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] Phase 2 players? Message-ID: <20000730001115.D17712@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Jim, can you tell us about Phase 2 players? >From Slashdot: http://slashdot.org/article.pl?sid=00/07/26/1317255&mode=nested Re:Unencrypted DVDs (Score:0) by Anonymous Coward on Wednesday July 26, @05:24PM EDT (#379) The recently introduced (6 months or so ago) "Phase 2" DVD players will not play unencrypted or "region 0" DVDs. Dell (probably other OEMs also) currently only ships these DVD players. Not a disagreement, just a caveat: older players would be usable as you describe, but good luck buying anything other than a "Phase 2" DVD player in a few months. [ Reply to This | Parent ] Phase 2 DVD players... no unencrypted discs. (Score:2) by Convergence (crosby@qwes.math.cmu.edu) on Wednesday July 26, @05:54PM EDT (#386) (User #64135 Info) As the parent points out (mod him up). If this is true, then the MPAA is acting just like the RIAA with their phase1 and phase2 players. Phase one is to get the public to accept it. The phase1 players play unencrypted, unsigned media. But then they flip a switch and you can only play encrypted, signed media. And from that point forward, you HAVE TO GO THROUGH them to get anything published. And, if it's true, then the switch has been flipped in the case of DVD players. You can no longer play unencrypted discs. You can no longer avoid paying a license fee to the DVD/CA to make a disc. (I did some research and cannot confirm that that is true. But I can confirm that the phase1/phase2 switch DOES disable changing your region code. In Phase 1, you can switch regions, in Phase 2, the DVD drive itself holds the region code and it cannot be changed or reset.) Quick question: Anyone know how to tell if you have a phase1/phase2 player? -- No DVD movie will ever enter the public domain. The last DVD will have moldered away decades before then. [ Reply to This | Parent ] Re:Phase 2 DVD players... no unencrypted discs. (Score:4, Insightful) by Sloppy (sloppy@spam^H^H^H^Hrt66.com) on Wednesday July 26, @06:29PM EDT (#396) (User #14984 Info) You can no longer avoid paying a license fee to the DVD/CA to make a disc. Ah, but the CSS algorithm has been reverse-engineered and is no longer a secret. Why pay a license fee when you can get the specs for free? Just download DeCSS and invert its function. That's the trial I really want to see: DVDCCA suing a publisher for making an encrypted DVD without a license, in order to play in Phase 2 players. Because if the publisher were to win that case (and I think they would) and 2600 loses the DeCSS case, then every single DVD player manufacturer -- even the ones who already have licenses from DVDCCA -- would be in violation of DMCA unless they reached a settlement with that publisher for "authorization" to circumvent. Read DMCA some time. It uses words like "authorization" but is pretty vague on who does the authorizing. I'm pretty sure it refers to the owner of the copyrighted work, though it doesn't explicitly say that. I'm damn sure that it doesn't refer to the inventor of the algorithm. I wish there were some say to make Judge Kaplan aware of this. It sheds a lot of light on the bizarre consequences of DMCA's language. -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 02:51:09 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id CAA27916 for dvd-discuss-outgoing; Sun, 30 Jul 2000 02:51:09 -0400 Received: from harrier.prod.itd.earthlink.net (harrier.prod.itd.earthlink.net [207.217.121.12]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id CAA27913 for ; Sun, 30 Jul 2000 02:51:08 -0400 Received: from naboo (user-2inib0s.dsl.mindspring.com [165.121.44.28]) by harrier.prod.itd.earthlink.net (8.9.3-EL_1_3/8.9.3) with ESMTP id XAA15196 for ; Sat, 29 Jul 2000 23:50:42 -0700 (PDT) From: "Jim Taylor" To: Subject: RE: [dvd-discuss] Phase 2 players? Date: Sat, 29 Jul 2000 23:50:19 -0700 Message-ID: MIME-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Content-Transfer-Encoding: 7bit X-Priority: 3 (Normal) X-MSMail-Priority: Normal X-Mailer: Microsoft Outlook IMO, Build 9.0.2416 (9.0.2911.0) In-Reply-To: <20000730001115.D17712@eldritchpress.org> Importance: Normal X-MimeOLE: Produced By Microsoft MimeOLE V5.50.4133.2400 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred, on Saturday, July 29, 2000 9:11 PM, wrote > >Jim, can you tell us about Phase 2 players? I can tell you that almost every sentence of the Slashdot posts below is bogus. People are getting regional management and CSS completely mixed up. >From Slashdot: >http://slashdot.org/article.pl?sid=00/07/26/1317255&mode=nested > > >Re:Unencrypted DVDs (Score:0) >by Anonymous Coward on Wednesday July 26, @05:24PM EDT (#379) >The recently introduced (6 months or so ago) "Phase 2" DVD players will not play >unencrypted or "region 0" DVDs. Dell (probably other OEMs also) currently only ships these >DVD players. Phase II drives, also called RPC2 drives, move region management from software (OS) control into the drive firmware. RPC1 drives had no region information, so the OS and the decoder had to implement it. This was easy to hack. RPC2 DVD-ROM drives, required from all manufacturers since Jan 2000, let the user change the region code. Once a drive has reached the limit (usually 5 changes) it can't be changed again unless the vendor or manufacturer resets it. That's it. Nothing to do with encryption. Not to mention that there's no such thing as a region 0 disc. There are all-region discs (such as the disc that comes in my book), which will play in all players and all drives, including RPC2 drives. Phase II affects only drives. It has nothing to do with standalone players. >If this is true, then the MPAA is acting just like the RIAA with their phase1 and >phase2 players. Phase one is to get the public to accept it. The phase1 players play >unencrypted, unsigned media. It took manufacturers a while to work out all the details of handling region changes in firmware. That's why RPC1 drives were around for a while, conspiracy theories notwithstanding. >But then they flip a switch and you can only play >encrypted, signed media. And from that point forward, you HAVE TO GO >THROUGH them to get anything published. There are no switches, and it would ludicrous for the DVD industry to make drives that broke literally thousands of existing non-CSS discs. Where do people come up with this stuff? There is a new content protection mechanism for recorded media (CPRM) that uses unique IDs on each recordable DVD blank to cryptographically bind recordings to the media. It's not related at all to RPC2, but maybe someone got confused. More details on CPRM are in a new version of the DVD FAQ that I just uploaded. >Quick question: Anyone know how to tell if you have a phase1/phase2 player? Quick answer: See section 1.10 of my DVD FAQ. >-- No DVD movie will ever enter the public domain. The last DVD will have >moldered away decades before then. Pressed DVDs are expected to last at least 100 years. We will all molder away long before the discs do. >Ah, but the CSS algorithm has been reverse-engineered and is no longer a >secret. Why pay a license fee when you can get the specs for free? Just >download DeCSS and invert its function. > >That's the trial I really want to see: DVDCCA suing a publisher for making an >encrypted DVD without a license, in order to play in Phase 2 players. This, of course, is silly. Once again, a non-CSS disc will play in every player, including Phase II drives. Someone could undoubtedly create a non-licensed CSS disc, but why bother other than to make a pointless gesture? -- Jim Taylor Author of DVD Demystified and the DVD FAQ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 11:26:45 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06064 for dvd-discuss-outgoing; Sun, 30 Jul 2000 11:26:45 -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 LAA06061 for ; Sun, 30 Jul 2000 11:26:44 -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:2.21) with ESMTP id LAA28328 for ; Sun, 30 Jul 2000 11:26:20 -0400 (EDT) Received: (from rst@localhost) by soggy-fibers.ai.mit.edu (8.9.1/8.8.4AI/ai.client:1.5) id LAA04253; Sun, 30 Jul 2000 11:26:20 -0400 (EDT) Date: Sun, 30 Jul 2000 11:26:20 -0400 (EDT) Message-Id: <200007301526.LAA04253@soggy-fibers.ai.mit.edu> From: "Robert S. Thau" To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) In-Reply-To: <20000729232656.C17712@eldritchpress.org> References: <20000728145802.M711@localhost> <4.1.20000729152046.01a3c5b0@law.harvard.edu> <200007300034.UAA03441@soggy-fibers.ai.mit.edu> <20000729232656.C17712@eldritchpress.org> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Eric Eldred writes: > > [rst:] > > If that argument works, of course, then access control over a > > published work really doesn't make a whole lot of sense, except if it > > works to discriminate between people who have paid for a copy and > > people who haven't. > > It might make sense if the "black box" that descrambles > a streamed video is considered the publication, and > access to it is controlled by restricting the use of > that hardware to people who have paid for access. I was thinking more along the lines of computer software license managers, or the like. On the other hand, IIRC, one of the rights surrendered at first sale is the right to resell, so it has to be possible for any such TPM to be adjusted without further consultations with the copyright holder, who isn't allowed to interfere, which constrains possible TPMs further. (This doesn't apply to software directly, of course, because software under license-manager control is licensed and not sold). rst From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 11:43:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id LAA06232 for dvd-discuss-outgoing; Sun, 30 Jul 2000 11:43:32 -0400 Received: from mail.swdata.com (root@mail.mninter.net [208.142.244.17]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id LAB06228 for ; Sun, 30 Jul 2000 11:43:30 -0400 Received: from mninter.net (moseng.swdata.com [205.140.224.214]) by mail.swdata.com (8.9.3/8.8.7) with ESMTP id KAA08711 for ; Sun, 30 Jul 2000 10:42:44 -0500 Message-ID: <39844C90.85961DA2@mninter.net> Date: Sun, 30 Jul 2000 10:41:04 -0500 From: Chris Moseng X-Mailer: Mozilla 4.61 [en] (Win98; U) X-Accept-Language: en MIME-Version: 1.0 To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access References: <20000729213126.27553.qmail@hotmail.com> <39837759.313D2520@mninter.net> <20000729232237.B17712@eldritchpress.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 Eric Eldred wrote: > If the Xing player keys were revoked, would its implementation > be "authorized" any longer? If not, would it be "circumventing"? > But wasn't the player authorized at time of implementation? > Just what is the authority model? Your idea sounds as good as > any, but it is really up to plaintiff to specify. And if not, > then we can use our imagination. I'm saying you can't authorize or disauthorize an implementation. An implementation is either compliant or non-compliant. So, if Xing wanted to thumb their nose at the DVDCCA and distribute their player with the revoked keys, we would have an strange battle on our hands. It would certainly be against the license they agreed to, but it would also be compliant in the sense that it was a CSS implementation with all the parts. It would also be fraudulent, unless they told buyers that it might fail to play DVDs sometimes. The DVDCCA would sue them for violating their license. The studios would have a hard time suing them for 1201 circumvention because it is a compliant device that provides access less often than a non-revoked-key player. The point is that a person distributing a player with reverse engineered keys is out of the reach of the DVDCCA (pending their bogus trade secret case). So distributing a player with revoked or a-ok keys in the absense of a license with Lucif^H^H^H^H^H the DVDCCA should be legal per the reverse engineering clause and the congressional record. The studios should have no recourse, including crying 1201 circumvention, when we are talking about implementations unless the implementation is faulty or incomplete and provides access in more cases than a compliant implementation would. If the implementation is complete, it is not a device for circumvention. It is a device that operates in conformity with the copyright holder's authorization wishes as set forth in their TPM. In the case of DVDs, that wish is to provide access every time you use the DVD. If the implemenation is incomplete, perhaps the judgement should be to fix the implementation. In this case Corley would have a hard time of that, being a non-programmer; but there is no evidence on record that DeCSS is non-compliant. The burden of proof should be on the plaintiffs to demonstrate how it fails to operate as a legitimate CSS implemenation and in that failure provide more access than a legitimate implementation. Implementing a TPM is legal. DeCSS is a compliant implementation. -- moseng@mninter.net I use PGP 6.5.3 -- http://www.underwhelm.org/pgp From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 13:21:54 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id NAA07329 for dvd-discuss-outgoing; Sun, 30 Jul 2000 13:21:54 -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 NAA07326 for ; Sun, 30 Jul 2000 13:21:53 -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 NAA21766 for ; Sun, 30 Jul 2000 13:21:25 -0400 (EDT) Message-Id: <4.2.2.20000730123941.00e20cd0@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sun, 30 Jul 2000 13:21:22 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Does DeCSS circumvent? Not if CSS effectively controls access In-Reply-To: <39844C90.85961DA2@mninter.net> References: <20000729213126.27553.qmail@hotmail.com> <39837759.313D2520@mninter.net> <20000729232237.B17712@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii"; format=flowed Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 10:41 AM 7/30/00 -0500, Chris Moseng wrote: >I'm saying you can't authorize or disauthorize an implementation. An >implementation is either compliant or non-compliant. This argument fits well with the First Amendment thrust that came out through Touretzky's testimony. There's something of a First Amendment interest, reinforced by the reverse engineering exception of 1201(f), in the unfettered right to develop implementations (and not just expressions about those implementations) of any viewing technology: "This case is fundamentally about free expression. 2600 asserts the freedom to publish software code as part of a discussion of copyright policy and it asserts the freedom to advocate use of that code, where necessary, for access to information the movie studios have attempted to lock up after publication. While plaintiffs claim new rights under the DMCA to encumber their works, the First Amendment cabins those claims against the overreaching they attempt here." If Kaplan wants to see this as a First Amendment case, great! We'll show him two prongs of First Amendment argument: code-as-speech and code-as-use-enabler (where use and fair use are First Amendment requirements, see Nesson and Benkler amici). Plaintiffs are not just trampling on any expressive code, but code that itself enables further expression. Plaintiffs' 1201 is not merely a content-neutral restriction of speech but one that targets DeCSS because of specially privileged content. (That is, beyond the general right we assert to discuss/develop technologies, a specific privilege should attach to the development of _information_access_ technologies.) Thoughts, including catchier names for the two headings? --Wendy >The point is that a person distributing a player with reverse engineered >keys is out of the reach of the DVDCCA (pending their bogus trade secret >case). So distributing a player with revoked or a-ok keys in the absense >of a license with Lucif^H^H^H^H^H the DVDCCA should be legal per the >reverse engineering clause and the congressional record. > >The studios should have no recourse, including crying 1201 >circumvention, when we are talking about implementations unless the >implementation is faulty or incomplete and provides access in more cases >than a compliant implementation would. > >If the implementation is complete, it is not a device for circumvention. >It is a device that operates in conformity with the copyright holder's >authorization wishes as set forth in their TPM. In the case of DVDs, >that wish is to provide access every time you use the DVD. > >If the implemenation is incomplete, perhaps the judgement should be to >fix the implementation. In this case Corley would have a hard time of >that, being a non-programmer; but there is no evidence on record that >DeCSS is non-compliant. The burden of proof should be on the plaintiffs >to demonstrate how it fails to operate as a legitimate CSS implemenation >and in that failure provide more access than a legitimate >implementation. > >Implementing a TPM is legal. DeCSS is a compliant implementation. > >-- >moseng@mninter.net >I use PGP 6.5.3 -- http://www.underwhelm.org/pgp 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 Jul 30 16:20:28 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id QAA10025 for dvd-discuss-outgoing; Sun, 30 Jul 2000 16:20:28 -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 QAA10022 for ; Sun, 30 Jul 2000 16:20:27 -0400 Received: (from jfb@localhost) by emperor.hwrd1.md.home.com (8.9.3/8.9.3) id QAA01484; Sun, 30 Jul 2000 16:20:00 -0400 Date: Sun, 30 Jul 2000 16:20:00 -0400 From: Jim Bauer Message-Id: <200007302020.QAA01484@emperor.hwrd1.md.home.com> To: dvd-discuss@eon.law.harvard.edu Subject: Re: DVDCCA (was Re: [dvd-discuss] Let's not miss another deadline!) Newsgroups: local.dvd-discuss In-Reply-To: <4.1.20000729115150.03136f00@law.harvard.edu> References: <20000728142446.B16063@eldritchpress.org> <20000728172231.6450.qmail@web512.mail.yahoo.com> <20000728172231.6450.qmail@web512.mail.yahoo.com> Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu Wendy Seltzer wrote: >At 11:37 AM 07/28/2000 -0700, James S. Tyre wrote: >>I am hoping that John Young's sneaker-net is scurrying about as I type, >>trying to get ahold of the docs so that we can find out what the hell this >>is all about. I can think of a number of reasons why DVD-CCA wants to >>intervene (they've only asked to, they haven't yet been granted permission >>to do so) and how those reasons might backfire, but it's really all >>speculation until we know the details. > >I don't presume to be John Young, but I think the DVDCCA was asking to >intervene on the question of keeping their licenses under seal. Defendants >put about 12 of the license documents in evidence, and several extra heads >popped up in the gallery during the discussion of whether those would be >accepted under seal. > >It will be interesting to see whether in making that motion, they attempt >to add other points as well. Has anybody tried filling out one of the forms at http://www.dvdcca.org/dvdcca/css/ to see if yhey can get a copy of the licenses that way? -- Jim Bauer, jfbauer@home.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 17:24:35 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11467 for dvd-discuss-outgoing; Sun, 30 Jul 2000 17:24:35 -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 RAA11464 for ; Sun, 30 Jul 2000 17:24:34 -0400 Message-ID: <20000730212340.29743.qmail@web513.mail.yahoo.com> Received: from [64.81.25.37] by web513.mail.yahoo.com; Sun, 30 Jul 2000 14:23:40 PDT Date: Sun, 30 Jul 2000 14:23:40 -0700 (PDT) From: Bryan Taylor Subject: Re: [dvd-discuss] Does DeCSS circumvent? (was Let's not miss another deadline!) To: dvd-discuss@eon.law.harvard.edu MIME-Version: 1.0 Content-Type: text/plain; charset=us-ascii Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu --- "Robert S. Thau" wrote: > > Bryan's essay makes a very similar argument: he invokes the first > sale doctrine, which states that all rights not specifically > codified in 17 USC 106 are transferred when the DVD is sold, and > infers that all *other* rights, including the right to authorize > private viewing, are necessarily among those surrendered at sale. > So, on this model (the "consumer's authorization model", as Bryan > calls it), when you've bought a copy of a published work, you don't > have to go to the copyright owner anymore to authorize access; you > have acquired the right to authorize yourself. > > (Bryan, I hope I got that right). Gee, I think you said it better than I did :-] By the way, here's my link again: http://bioinformatics.ucsf.edu/bwtaylor/dvd/amicus/essay1.txt > If that argument works, of course, then access control over a > published work really doesn't make a whole lot of sense, except if it > works to discriminate between people who have paid for a copy and > people who haven't. One thing that I didn't put in my essay, but that is probably important is that the identification of first sale as the access authority transfer point allows us to differentiate Streambox (without endorsing it). It also leads really well into antitrust: if you don't transfer access authority at the same time as the copy is sold, then you have a First Sale and a Second Sale and the overwelming possibility for abuse by tying them together, especially as multiple copyright owners share protection schemes. __________________________________________________ Do You Yahoo!? Kick off your party with Yahoo! Invites. http://invites.yahoo.com/ From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 17:44:42 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA11973 for dvd-discuss-outgoing; Sun, 30 Jul 2000 17:44:42 -0400 Received: from mta6.snfc21.pbi.net (mta6.snfc21.pbi.net [206.13.28.240]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA11970 for ; Sun, 30 Jul 2000 17:44:41 -0400 Received: from photon ([63.195.90.12]) by mta6.snfc21.pbi.net (Sun Internet Mail Server sims.3.5.2000.01.05.12.18.p9) with SMTP id <0FYJ00J325MF2J@mta6.snfc21.pbi.net> for dvd-discuss@eon.law.harvard.edu; Sun, 30 Jul 2000 14:42:15 -0700 (PDT) Date: Sun, 30 Jul 2000 15:01:23 -0700 From: Paul Hsieh Subject: [dvd-discuss] Re: 2600, cryptome.org To: dvd-discuss@eon.law.harvard.edu Message-id: <0FYJ00J335MF2J@mta6.snfc21.pbi.net> Organization: A Zillion Monkeys MIME-version: 1.0 X-Mailer: Pegasus Mail for Win32 (v3.01b) 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 Sorry to spam this list with this but -- Any idea what has happened to www.2600.com and cryptome.org? Neither has been up for days. (From a practical point of view, this is somewhat worse than just the injunction itself ...) -- Paul Hsieh qed@pobox.com From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 17:59:43 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id RAA12153 for dvd-discuss-outgoing; Sun, 30 Jul 2000 17:59:43 -0400 Received: from granger.mail.mindspring.net (granger.mail.mindspring.net [207.69.200.148]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id RAA12150 for ; Sun, 30 Jul 2000 17:59:41 -0400 Received: from jy01 (user-2iniinu.dialup.mindspring.com [165.121.74.254]) by granger.mail.mindspring.net (8.9.3/8.8.5) with SMTP id RAA18555 for ; Sun, 30 Jul 2000 17:59:14 -0400 (EDT) Message-Id: <200007302159.RAA18555@granger.mail.mindspring.net> X-Sender: jya@pop.pipeline.com X-Mailer: QUALCOMM Windows Eudora Pro Version 4.0 Date: Sun, 30 Jul 2000 17:54:11 -0400 To: dvd-discuss@eon.law.harvard.edu From: John Young Subject: Re: [dvd-discuss] Re: 2600, cryptome.org In-Reply-To: <0FYJ00J335MF2J@mta6.snfc21.pbi.net> Mime-Version: 1.0 Content-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, that's startling about 2600, I hadn't known about that and will try to reach somebody by sneaker net. Cryptome is up and running on a new server: http://216.167.120.50 The domain name should be activated in a few days. Our ISP said the outage is due to overload and recommended a meaner machine, which we gulped and bought. Now if it gets eaten by a meaner bear, too, who you gonna call? From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 19:43:22 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id TAA14254 for dvd-discuss-outgoing; Sun, 30 Jul 2000 19:43:22 -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 TAA14251 for ; Sun, 30 Jul 2000 19:43:21 -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 TAA05488; Sun, 30 Jul 2000 19:42:51 -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 TAA14221; Sun, 30 Jul 2000 19:42:04 -0400 (EDT) Mime-Version: 1.0 Message-Id: Date: Sun, 30 Jul 2000 19:41:52 -0400 To: dvd-discuss@eon.law.harvard.edu From: "Arnold G. Reinhold" Subject: [dvd-discuss] Summers v. Tice and hearsay Rev2 Cc: Jeme A Brelin Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id TAA14252 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: >Eric and related people who have brought up case law regarding this issue, >coudl you write up this argument a bit more formally and present it to the >group by Monday? [Is this better? -- agr] On July 25 Judge Kaplan requested briefs briefs on "three points that are bothering me in particular" (Transcript Day 6 p. 1150, Line 23): We propose that there is a close relationship between the Judge's second and third points (p. 1151, l. 9): > 9 Secondly, I'm sure we talked about Summers v. Tise > 10 and its implications here. And thirdly is whether and to what > 11 extent I properly may conclude from the evidence that's in the > 12 record that decoded DVD movies actually are available either > 13 over or through the internet. That's essentially an > 14 evidentiary question. The second point questions "whether the burden of proving that whatever decryptions are out there came from the defendant or more broadly DeCSS is on the plaintiff as distinguished from the burden being on the defendant to prove that they did not." (Day 5, p. 818, l. 21) The Judge suggests applying Summers v. Tice (33 Cal.2d 80) might yield an affirmative answer. The third point is based on a hearsay objection to the Judge considering, Ms. Mikhail Reider's testimony about what movie files are available on the Internet. (Day 4, p. 664, l. 5) The essence of Summers is fairness: "The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all..." (Summers, § 5, quoting Wigmore, Select Cases on the Law of Torts, § 153.) Part of the reason hearsay is generally excluded is also fairness: otherwise the opposing side would be denied the opportunity to cross examine the person who's statement is offered as proof. Thus there are countervailing issues of fairness on both points that must be weighed. In the present case, the only proffered evidence of injury was collected by Ms. Reider, an experienced investigator who received "specialized training in Internet investigations" from the Department of Justice and from the High Technology Crime Investigators Association (Transcript, day 4, p. 649, line 19). At the time Ms. Reider was working for MPAA (day 4, p 647, l. 12) and addressing a problem that MPAA claims threatens them irreparable harm. Collecting the actual movie files, as opposed to mere reports of the files being offered for download, would have required Ms. Reider to perform the same steps plaintiffs claim the general public will do routinely in downloading pirated movies. No explanation has been offered by plaintiffs for their failure to do so. Indeed, it is possible that plaintiffs have not produced copies of the allegedly posted movies because they fear the defense might be able to demonstrate that the files in question were not decoded by DeCSS. Ms. Reider's professed inability to remember even if she had written a report on her investigation (Day 4, p. 687, l.8), which took place less than a year ago, could lead a reasonable person to suspect she was hiding something. The same sensitivity to fairness that motivates Sommers should shield the defendants from the unreasonable burden of refuting hearsay reports of evidence that plaintiffs' trained investigator could have easily collected, but didn't. An analogous situation in the Sommers context might be a shooting case where the only evidence of injury is testimony by a forensic pathologist hired by plaintiff who interviewed the attending physician and testifies that the physician said the wound was caused by a single shotgun pellet. The pathologist also admits that he was offered the pellet itself but declined to take it. Would we admit his hearsay evidence AND place the burden of proof on the defendant to show it wasn't his shotgun? There is yet another argument against applying Sommers to this case. A key element in the Sommers analysis is *certainty* that damage was caused by one of the defendants: "it is certain that between them they did all..." (Summers, Section 5). The analog for the defendants in our case are the various "ripper" programs that were posted in the second half of 1999. But no evidence has been offered that the movie files allegedly posted to the Internet were created using *any* ripper programs. Even if one accepts plaintiffs' claim that Divx movie files appeared shortly after the ripper programs were posted, and interpret that as suggesting a link, the evidence hardly rises to the standard in Sommers, which is certainty. Arnold Reinhold From dvd-discuss-owner@eon.law.harvard.edu Sun Jul 30 20:21:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id UAA14480 for dvd-discuss-outgoing; Sun, 30 Jul 2000 20:21:40 -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 UAA14477 for ; Sun, 30 Jul 2000 20:21:39 -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 UAA12078; Sun, 30 Jul 2000 20:21:16 -0400 (EDT) Message-Id: <4.2.2.20000730200053.023b6990@pop.bellatlantic.net> X-Sender: wseltzer@pop.bellatlantic.net X-Mailer: QUALCOMM Windows Eudora Pro Version 4.2.2 Date: Sun, 30 Jul 2000 20:21:14 -0400 To: dvd-discuss@eon.law.harvard.edu From: Wendy Seltzer Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Rev2 Cc: ehernstadt@fgks.com In-Reply-To: Mime-Version: 1.0 Content-Type: text/plain; charset="iso-8859-1"; format=flowed Content-Transfer-Encoding: 8bit X-MIME-Autoconverted: from quoted-printable to 8bit by eon.law.harvard.edu id UAA14478 Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu At 07:41 PM 7/30/00 -0400, Arnold G. Reinhold wrote: >At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: >>Eric and related people who have brought up case law regarding this issue, >>coudl you write up this argument a bit more formally and present it to the >>group by Monday? > >[Is this better? -- agr] I suspect that with your permission, the defense team will want to incorporate much of your argument directly into their brief. You make a strong showing that there is no reason to shift the burden of proof, where plaintiffs had full access to the evidence and _chose_ not to test whether it sustained their claims. Since Kaplan has specifically requested clarification on this point from the parties, I suggest that the defense brief is the most appropriate place for these arguments. Indeed, unless we have something entirely different from what the defendants will be saying, I'd suggest we can help best by offering all of our arguments to the defense brief, rather than submitting another amicus -- and drafts such as this one or Robert's or Bryan's seem to me to be an effective way to give that help. I still think it's probable that an extra submission would annoy Kaplan more than it would help the defense cause. Thanks! --Wendy >On July 25 Judge Kaplan requested briefs briefs on "three points that are >bothering me in particular" (Transcript Day 6 p. 1150, Line 23): > >We propose that there is a close relationship between the Judge's second >and third points (p. 1151, l. 9): > >> 9 Secondly, I'm sure we talked about Summers v. Tise >> 10 and its implications here. And thirdly is whether and to what >> 11 extent I properly may conclude from the evidence that's in the >> 12 record that decoded DVD movies actually are available either >> 13 over or through the internet. That's essentially an >> 14 evidentiary question. > >The second point questions "whether the burden of proving that whatever >decryptions are out there came from the defendant or more broadly DeCSS is >on the plaintiff as distinguished from the burden being on the defendant >to prove that they did not." (Day 5, p. 818, l. 21) The Judge suggests >applying Summers v. Tice (33 Cal.2d 80) might yield an affirmative answer. >The third point is based on a hearsay objection to the Judge considering, >Ms. Mikhail Reider's testimony about what movie files are available on the >Internet. (Day 4, p. 664, l. 5) > >The essence of Summers is fairness: "The real reason for the rule that >each joint tortfeasor is responsible for the whole damage is the practical >unfairness of denying the injured person redress simply because he cannot >prove how much damage each did, when it is certain that between them they >did all..." (Summers, § 5, quoting Wigmore, Select Cases on the Law of >Torts, § 153.) Part of the reason hearsay is generally excluded is also >fairness: otherwise the opposing side would be denied the opportunity to >cross examine the person who's statement is offered as proof. Thus there >are countervailing issues of fairness on both points that must be weighed. > >In the present case, the only proffered evidence of injury was collected >by Ms. Reider, an experienced investigator who received "specialized >training in Internet investigations" from the Department of Justice and >from the High Technology Crime Investigators Association (Transcript, day >4, p. 649, line 19). At the time Ms. Reider was working for MPAA (day 4, p >647, l. 12) and addressing a problem that MPAA claims threatens them >irreparable harm. Collecting the actual movie files, as opposed to mere >reports of the files being offered for download, would have required Ms. >Reider to perform the same steps plaintiffs claim the general public will >do routinely in downloading pirated movies. No explanation has been >offered by plaintiffs for their failure to do so. > >Indeed, it is possible that plaintiffs have not produced copies of the >allegedly posted movies because they fear the defense might be able to >demonstrate that the files in question were not decoded by DeCSS. Ms. >Reider's professed inability to remember even if she had written a report >on her investigation (Day 4, p. 687, l.8), which took place less than a >year ago, could lead a reasonable person to suspect she was hiding something. > >The same sensitivity to fairness that motivates Sommers should shield the >defendants from the unreasonable burden of refuting hearsay reports of >evidence that plaintiffs' trained investigator could have easily >collected, but didn't. > >An analogous situation in the Sommers context might be a shooting case >where the only evidence of injury is testimony by a forensic pathologist >hired by plaintiff who interviewed the attending physician and testifies >that the physician said the wound was caused by a single shotgun >pellet. The pathologist also admits that he was offered the pellet itself >but declined to take it. Would we admit his hearsay evidence AND place the >burden of proof on the defendant to show it wasn't his shotgun? > >There is yet another argument against applying Sommers to this case. A key >element in the Sommers analysis is *certainty* that damage was caused by >one of the defendants: "it is certain that between them they did all..." >(Summers, Section 5). The analog for the defendants in our case are the >various "ripper" programs that were posted in the second half of >1999. But no evidence has been offered that the movie files allegedly >posted to the Internet were created using *any* ripper programs. Even if >one accepts plaintiffs' claim that Divx movie files appeared shortly after >the ripper programs were posted, and interpret that as suggesting a link, >the evidence hardly rises to the standard in Sommers, which is certainty. > > >Arnold Reinhold > 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 Mon Jul 31 00:07:32 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18107 for dvd-discuss-outgoing; Mon, 31 Jul 2000 00:07:32 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18104 for ; Mon, 31 Jul 2000 00:07:16 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA18518; Mon, 31 Jul 2000 00:10:58 -0400 Date: Mon, 31 Jul 2000 00:10:53 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: Jeme A Brelin Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Rev2 Message-ID: <20000731001053.A18420@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Sun, Jul 30, 2000 at 07:41:52PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 30, 2000 at 07:41:52PM -0400, Arnold G. Reinhold wrote: > At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: > >Eric and related people who have brought up case law regarding this issue, > >coudl you write up this argument a bit more formally and present it to the > >group by Monday? > > [Is this better? -- agr] > > On July 25 Judge Kaplan requested briefs briefs on "three points that > are bothering me in particular" (Transcript Day 6 p. 1150, Line 23): > > We propose that there is a close relationship between the Judge's > second and third points (p. 1151, l. 9): > > > 9 Secondly, I'm sure we talked about Summers v. Tise > > 10 and its implications here. And thirdly is whether and to what > > 11 extent I properly may conclude from the evidence that's in the > > 12 record that decoded DVD movies actually are available either > > 13 over or through the internet. That's essentially an > > 14 evidentiary question. > > The second point questions "whether the burden of proving that > whatever decryptions are out there came from the defendant or more > broadly DeCSS is on the plaintiff as distinguished from the burden > being on the defendant to prove that they did not." (Day 5, p. 818, > l. 21) The Judge suggests applying Summers v. Tice (33 Cal.2d 80) > might yield an affirmative answer. The third point is based on a > hearsay objection to the Judge considering, Ms. Mikhail Reider's > testimony about what movie files are available on the Internet. (Day > 4, p. 664, l. 5) I agree with Arnold here. But I would like to add another point. Judge Kaplan uses the term "decoded" DVD movies. Simple copyright infringement does not require that the DVD be decoded, only copied and distributed without authority. However, plaintiffs argue that DeCSs contributes to this by decoding. However, plaintiffs need to show that in this case the alleged DVD movies were decoded or decrypted (in other words, that the alleged "circumvention" took place) and not just that a movie was copied somehow and possibly offered for trade on the Internet. Otherwise they cannot show circumvention and have no cause for action under 1201. In addition, 1201 uses the terms "trafficking" and "marketing" to refer to some commercial use of the circumvention in contributory infringement. However, plaintiffs have not shown that such activity has occurred here, nor that the activity was not otherwise allowed under 1201 (for example, that the sale was authorized by the copyright holder). The analogy should not be with the forensic examination showing a shotgun pellet. Only that the death cannot be ruled out by someone possibly firing a shotgun or simply having a shotgun at the same time as the victim died. As Kaplan says, it is "essentially an evidentiary question" and it is a long distance from this case to Summers v Tice in analogy under law. Possibly if plaintiffs could narrow the evidence down to say it had to be Corley or Smith, and Smith got DeCSS and used it from Corley, and the movie was not authorized to be distributed, and so on, then it might be a question of responsibility. But there is no question of having the defendants be responsible for dividing the blame. Under copyright law, is this even divisible? If one is shown to infringe, then one is not half an infringer, one has to be fully responsible for infringement. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 00:16:27 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18395 for dvd-discuss-outgoing; Mon, 31 Jul 2000 00:16:27 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18392 for ; Mon, 31 Jul 2000 00:16:12 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA18527; Mon, 31 Jul 2000 00:19:55 -0400 Date: Mon, 31 Jul 2000 00:19:50 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: Jeme A Brelin Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Rev2 Message-ID: <20000731001950.B18420@eldritchpress.org> References: Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: ; from reinhold@world.std.com on Sun, Jul 30, 2000 at 07:41:52PM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Sun, Jul 30, 2000 at 07:41:52PM -0400, Arnold G. Reinhold wrote: > At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: > >Eric and related people who have brought up case law regarding this issue, > >coudl you write up this argument a bit more formally and present it to the > >group by Monday? > > [Is this better? -- agr] > > On July 25 Judge Kaplan requested briefs briefs on "three points that > are bothering me in particular" (Transcript Day 6 p. 1150, Line 23): > > We propose that there is a close relationship between the Judge's > second and third points (p. 1151, l. 9): > > > 9 Secondly, I'm sure we talked about Summers v. Tise > > 10 and its implications here. And thirdly is whether and to what > > 11 extent I properly may conclude from the evidence that's in the > > 12 record that decoded DVD movies actually are available either > > 13 over or through the internet. That's essentially an > > 14 evidentiary question. There is another point that might be brought up. I don't know if it was covered in any of the testimony or depositions or briefs, but I remember something someone said on Slashdot. Apparently some movies offered on the Internet have been copied from VCDs. I have heard that Asian copiers have done this extensively. Someone mentioned one movie, I think "The Phantom Menace," for example, that has not yet been released on DVD. Possibly some of the movies in question were not yet released on DVD, and by preventing the introduction of evidence, defendants are not allowed to cross-examine on this very point. Because if the movie was not yet out on DVD then what does DeCSS have to do with it? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 00:27:53 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id AAA18571 for dvd-discuss-outgoing; Mon, 31 Jul 2000 00:27:53 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id AAA18568 for ; Mon, 31 Jul 2000 00:27:42 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id AAA18547 for dvd-discuss@eon.law.harvard.edu; Mon, 31 Jul 2000 00:31:36 -0400 Date: Mon, 31 Jul 2000 00:31:31 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: [dvd-discuss] NYT article by Amy Harmon 7/31/2000 Message-ID: <20000731003131.A18532@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu All the News That's Fit to Print: (free registration required) http://www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html July 31, 2000 Free Speech Rights for Computer Code? Suit Tests Power of Media Concerns To Control Access to Digital Content ... "Mr. Johansen, now 16, was recently named in the California case. Norwegian authorities, who seized his computer and held him for questioning last January, have also charged him under Norwegian laws for contributing to copyright infringement. "More recently, offers have starting surfacing in Internet chat rooms to trade DVD movies over the Internet that have apparently been decoded with DeCSS or other programs. The movies would be sent over the Web with new data-compressing software known as Divx. The technique is similar to the way MP3 music files are transmitted via Napster and other music services, except that video files are much larger and encrypted and typically take many hours longer to travel across the Internet. "Just how widespread such copying is, and to what extent DeCSS is used in such activities, was a matter of some debate at the trial. In fact, the studios conceded that they had no evidence of an individual who had actually used DeCSS for piracy. ""We don't have to prove it," said Leon Gold, a lawyer with the New York firm Proskauer Rose L.L.P., who is the studios' lead lawyer. "The point is, we're trying to prevent it." ".... -- "Eric" Eric Eldred Eldritch Press mailto:Eldred@EldritchPress.org http://www.eldritchpress.org/EricEldred.vcf From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 01:06:18 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19272 for dvd-discuss-outgoing; Mon, 31 Jul 2000 01:06:18 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19269 for ; Mon, 31 Jul 2000 01:06:06 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA18572; Mon, 31 Jul 2000 01:09:50 -0400 Date: Mon, 31 Jul 2000 01:09:45 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: Jeme A Brelin Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Rev2 Message-ID: <20000731010945.B18532@eldritchpress.org> References: <20000731001950.B18420@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000731001950.B18420@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Jul 31, 2000 at 12:19:50AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 31, 2000 at 12:19:50AM -0400, Eric Eldred wrote: > On Sun, Jul 30, 2000 at 07:41:52PM -0400, Arnold G. Reinhold wrote: > > At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: > > >Eric and related people who have brought up case law regarding this issue, > > >coudl you write up this argument a bit more formally and present it to the > > >group by Monday? > > > > [Is this better? -- agr] > > > > On July 25 Judge Kaplan requested briefs briefs on "three points that > > are bothering me in particular" (Transcript Day 6 p. 1150, Line 23): > > > > We propose that there is a close relationship between the Judge's > > second and third points (p. 1151, l. 9): > > > > > 9 Secondly, I'm sure we talked about Summers v. Tise > > > 10 and its implications here. And thirdly is whether and to what > > > 11 extent I properly may conclude from the evidence that's in the > > > 12 record that decoded DVD movies actually are available either > > > 13 over or through the internet. That's essentially an > > > 14 evidentiary question. > > There is another point that might be brought up. I don't know if > it was covered in any of the testimony or depositions or briefs, but > I remember something someone said on Slashdot. > > Apparently some movies offered on the Internet have been copied from > VCDs. I have heard that Asian copiers have done this extensively. > Someone mentioned one movie, I think "The Phantom Menace," for example, > that has not yet been released on DVD. And I just remembered that when Jack Valenti testified before Congress a few months ago he cried about this menace (presumably not "phantom" to him) of digital copying, bit-for-bit, and then was able to produce only VCDs from China, no DVDs. But maybe he wasn't able to remember that in his deposition. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 01:08:15 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19378 for dvd-discuss-outgoing; Mon, 31 Jul 2000 01:08:15 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19375 for ; Mon, 31 Jul 2000 01:08:04 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA18581 for dvd-discuss@eon.law.harvard.edu; Mon, 31 Jul 2000 01:11:58 -0400 Date: Mon, 31 Jul 2000 01:11:53 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NYT article by Amy Harmon 7/31/2000 Message-ID: <20000731011153.C18532@eldritchpress.org> References: <20000731003131.A18532@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000731003131.A18532@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Jul 31, 2000 at 12:31:31AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 31, 2000 at 12:31:31AM -0400, Eric Eldred wrote: > All the News That's Fit to Print: > (free registration required) > > http://www.nytimes.com/library/tech/00/07/biztech/articles/31rite.html > July 31, 2000 > Free Speech Rights for Computer Code? How do you like the pictures? Did you type in the code from the DeCSS t-shirt photo? Does Jon really have blue hair or is that my monitor? From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 01:12:55 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA19455 for dvd-discuss-outgoing; Mon, 31 Jul 2000 01:12:55 -0400 Received: from eldritchpress.org (eldred.ne.mediaone.net [24.128.241.25]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA19451 for ; Mon, 31 Jul 2000 01:12:44 -0400 Received: (from eldred@localhost) by eldritchpress.org (8.8.7/8.8.7) id BAA18591; Mon, 31 Jul 2000 01:16:28 -0400 Date: Mon, 31 Jul 2000 01:16:23 -0400 From: Eric Eldred To: dvd-discuss@eon.law.harvard.edu Cc: Jeme A Brelin Subject: Re: [dvd-discuss] Summers v. Tice and hearsay Rev2 Message-ID: <20000731011623.D18532@eldritchpress.org> References: <20000731001053.A18420@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii X-Mailer: Mutt 1.0i In-Reply-To: <20000731001053.A18420@eldritchpress.org>; from eldred@eldritchpress.org on Mon, Jul 31, 2000 at 12:10:53AM -0400 Organization: Eldritch Press Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu On Mon, Jul 31, 2000 at 12:10:53AM -0400, Eric Eldred wrote: > On Sun, Jul 30, 2000 at 07:41:52PM -0400, Arnold G. Reinhold wrote: > > At 5:04 PM -0700 7/28/2000, Jeme A Brelin wrote: > > >Eric and related people who have brought up case law regarding this issue, > > >coudl you write up this argument a bit more formally and present it to the > > >group by Monday? > > > > [Is this better? -- agr] > > > > On July 25 Judge Kaplan requested briefs briefs on "three points that > > are bothering me in particular" (Transcript Day 6 p. 1150, Line 23): > > > > We propose that there is a close relationship between the Judge's > > second and third points (p. 1151, l. 9): > > > > > 9 Secondly, I'm sure we talked about Summers v. Tise > > > 10 and its implications here. And thirdly is whether and to what > > > 11 extent I properly may conclude from the evidence that's in the > > > 12 record that decoded DVD movies actually are available either > > > 13 over or through the internet. That's essentially an > > > 14 evidentiary question. > > > > The second point questions "whether the burden of proving that > > whatever decryptions are out there came from the defendant or more > > broadly DeCSS is on the plaintiff as distinguished from the burden > > being on the defendant to prove that they did not." (Day 5, p. 818, > > l. 21) The Judge suggests applying Summers v. Tice (33 Cal.2d 80) > > might yield an affirmative answer. The third point is based on a > > hearsay objection to the Judge considering, Ms. Mikhail Reider's > > testimony about what movie files are available on the Internet. (Day > > 4, p. 664, l. 5) > > I agree with Arnold here. But I would like to add another point. > > Judge Kaplan uses the term "decoded" DVD movies. Simple copyright > infringement does not require that the DVD be decoded, only > copied and distributed without authority. However, plaintiffs > argue that DeCSs contributes to this by decoding. However, plaintiffs > need to show that in this case the alleged DVD movies were decoded > or decrypted (in other words, that the alleged "circumvention" took > place) and not just that a movie was copied somehow and possibly > offered for trade on the Internet. Otherwise they cannot show > circumvention and have no cause for action under 1201. > > In addition, 1201 uses the terms "trafficking" and "marketing" to > refer to some commercial use of the circumvention in contributory > infringement. However, plaintiffs have not shown that such activity > has occurred here, nor that the activity was not otherwise allowed > under 1201 (for example, that the sale was authorized by the copyright > holder). Nor do they allege that any infringement actually took place. It's like arguing negligence (from Summers) for firing a gun in the general direction of plaintiff on the grounds that if the aim had been better there might have been some harm. And the plaintiff was walking on hunting grounds without wearing orange. Simply said, this is not a case for damages, but for violation of the DMCA. Summers is a distraction. Judge Kaplan has jumped the gun on this one. From dvd-discuss-owner@eon.law.harvard.edu Mon Jul 31 01:23:40 2000 Received: (from majordomo@localhost) by eon.law.harvard.edu (8.8.7/8.8.7) id BAA20419 for dvd-discuss-outgoing; Mon, 31 Jul 2000 01:23:40 -0400 Received: from lightning.i3s.net (lightning.i3s.net [24.219.4.1]) by eon.law.harvard.edu (8.8.7/8.8.7) with ESMTP id BAA20416 for ; Mon, 31 Jul 2000 01:23:39 -0400 Received: from bushing (unverified [24.219.90.179]) by lightning.i3s.net (Rockliffe SMTPRA 3.4.7) with ESMTP id for ; Mon, 31 Jul 2000 00:22:49 -0500 Received: from bushing ([127.0.0.1] helo=rice.edu ident=bbyer) by bushing with esmtp (Exim 3.12 #1 (Debian)) id 13J80L-0001A0-00 for ; Mon, 31 Jul 2000 00:20:45 -0500 X-Mailer: exmh version 2.1.1 10/15/1999 (debian) To: dvd-discuss@eon.law.harvard.edu Subject: Re: [dvd-discuss] NYT article by Amy Harmon 7/31/2000 In-Reply-To: Your message of "Mon, 31 Jul 2000 01:11:53 EDT." <20000731011153.C18532@eldritchpress.org> References: <20000731003131.A18532@eldritchpress.org> <20000731011153.C18532@eldritchpress.org> Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Date: Mon, 31 Jul 2000 00:20:39 -0500 From: Ben Byer Message-Id: Sender: owner-dvd-discuss@eon.law.harvard.edu Precedence: bulk Reply-To: dvd-discuss@eon.law.harvard.edu > Does Jon really have blue hair or is that my monitor? *sigh* Bad caption -- That's Macki, the 2600 webmaster. (The 2600 website is down right now?) Real nice guy -- I talked to him before the trial on the first day. Ben